Epic Security Corp.

National Labor Relations Board - Board Decisions

May 15, 1998

325 N.L.R.B. 772 (N.L.R.B. 1998)

772
325 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
2 Chairman Gould adopts the judge’s finding that the Respondent
violated Sec. 8(a)(1) of the Act by attempting to dissuade a former
supervisor from testifying as a witness in this case. The Chairman
notes, however, that he disagrees with the Board’s decision in
Parker-Robb Chevrolet, 262 NLRB 402 (1982), affd. sub nom. Auto-
mobile Salesmen’s Union Local 1095 v. NLRB, 711 F.2d 383 (D.C.
Cir. 1983), which the judge relied on in part as support for finding
this violation, to the extent that it limits the reach of Sec. 8(a)(1)
in cases of discrimination against statutory supervisors.
3 Bracht, Torres, Selwyn Falk, and Joseph DeVittorio all were
aware of an incident which had occurred shortly before that date,
when an off-duty employee of the Respondent had approached an
on-duty employee in similar circumstances, pulled a gun, and shot
the employee.
4 The Respondent has excepted to the judge’s admission of
DeVittorio’s testimony regarding this conversation with Lopez, over
the Respondent’s objection at the hearing. The Respondent contends,
as it did before the judge, that the testimony was elicited on cross-
examination and was beyond the scope of the direct examination.
Contrary to the Respondent, our examination of the record shows
that the testimony elicited from DeVittorio on cross-examination is
related to his testimony during direct examination regarding his
knowledge of the January 11 incident. We find that DeVittorio’s tes-
timony was properly admitted and, accordingly, we deny the Re-
spondent’s exception to the judge’s ruling.
5 Torres corroborated Bracht’s testimony. Lopez did not testify at
the hearing. Further, we note that Bracht’s testimony is consistent
with the decision of the New York State Unemployment Compensa-
tion Board, placed in evidence by the Respondent and discussed
infra, finding that Bracht had violated a company rule by making
‘‘threatening motions as if he was going to remove his gun from his
holster . . . .’’ (Emphasis added.)
Epic Security Corporation and United Federation of
Police Officers
Epic Security Corporation and Louis Bracht. Cases
2–CA–28188, 2–CA–28296, and 2–CA–28329
May 15, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On October 11, 1996, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a support-
ing brief, and the Respondent and the General Counsel
filed answering briefs. The General Counsel filed a
reply to the Respondent’s answering brief; and the Re-
spondent submitted a response memorandum in further
support of its exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion.
(1) We adopt the judge’s finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by dis-
charging Louis Bracht.
(a) In late December 1994, Nestor Gonzalez, one of
the Respondent’s employees, began distributing union
authorization cards to fellow guards in areas in the
building in which the Respondent’s New York City of-
fice was located.
On January 11, 1995, as Louis Bracht, another of
the Respondent’s guard employees, and his partner,
Nelson Torres, were making a cash delivery at a bank,
Angel Lopez, an off-duty employee, approached their
armored truck with his hand in his pocket.3 Torres told
Lopez to stop and empty his pockets, and Bracht pat-
ted Lopez down. After a brief conversation, Lopez left.
Bracht did not immediately file an incident report. A
few days later, dispatcher (surnamed) Beck, a super-
visor, asked Torres about the incident. Torres reported
the conversation to Bracht. On January 16, Bracht
filled out an ‘‘unusual incident report,’’ setting forth
the circumstances of the January 11 incident, and left
it on the desk of Assistant Operations Manager Joseph
DeVittorio.
On February 17, the Respondent’s vice president of
operations, Selwyn Falk, observed Bracht talking to
several other employees outside its place of business.
Falk broke up the discussion, warned Bracht against
discussing the Union, interrogated Bracht about the lo-
cation of a union meeting scheduled for that evening,
and told Bracht that it would find out the location of
the union meeting from one of its ‘‘sources,’’ thereby
creating the impression that the Respondent was en-
gaging in surveillance of employees’ union activities.
In early March 1995, Lopez talked to DeVittorio
about the January 11 incident. DeVittorio told Lopez
that he should not have walked up to the vehicle
uninvited, because Bracht and Torres may have felt
threatened by his approach. DeVittorio warned Lopez
never to approach an Epic Security vehicle without
being invited, and Lopez agreed. DeVittorio later told
Torres that he had warned Lopez never to approach an
Epic vehicle uninvited, but did not discuss the incident
with Bracht.4
On April 6, 1995, Falk told Bracht that he had just
received a complaint that Bracht and Torres had
‘‘menaced’’ a fellow security officer and that Bracht
had pulled a gun on the officer. Falk was referring to
the January 11 incident involving Lopez. Bracht denied
having drawn his gun. He said that all he did was
touch his gun and that he was just ‘‘fooling around.’’5
Falk discharged Bracht for ‘‘violations of firearms
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773EPIC SECURITY CORP.
6 The Respondent has excepted to the judge’s ruling that the denial
of benefits to Bracht by the New York State Unemployment Insur-
ance Appeal Board has no material impact regarding the issue
whether Bracht’s discharge violated Sec. 8(a)(3) and (1) of the Act.
In agreement with the judge, we find that the decision of the State
Board is not dispositive of the issue before us. Original jurisdiction
over the issue of employment discrimination under the National
Labor Relations Act has been committed by Congress to the Na-
tional Labor Relations Board. The State Board’s decision was predi-
cated on Bracht’s violation of the Respondent’s firearms rules.
Moreover, the State Board expressly stated the limits of its jurisdic-
tion, finding that Bracht’s rules violation ‘‘constituted misconduct
for unemployment insurance purposes.’’ (Emphasis added.) There is
no evidence that the NLRB was represented at the state proceeding
or that the Act was mentioned or considered. Seaboard Farms of
Athens, Inc., 292 NLRB 776, 788 (1989).
rules and regulations and the fact that (Bracht) men-
aced one of (the Respondent’s) employees in public.’’
Falk confiscated Bracht’s gun permit and turned it in
to the license division of the New York City Police
Department. Torres was not disciplined in connection
with the incident.
On these facts, the judge rejected Falk’s testimony
that he did not learn about the January 11 incident
until April 6. He found that Bracht had placed the inci-
dent report on the desk of Falk’s assistant, DeVittorio,
on January 16. He further found that the Respondent
was aware of the January 11 incident in January when,
shortly after Bracht left the incident report on
DeVittorio’s desk, Supervisor Beck questioned Torres
about the incident. The judge found that the Respond-
ent was aware of Bracht’s support for the Union on
February 17, when Falk interrogated and threatened
Bracht about his union activities and created the im-
pression that employees’ union activities were under
surveillance. The Respondent’s antiunion animus is
evident in its conduct towards Bracht and its pattern of
unlawful conduct aimed at discouraging employees’
union organizing efforts. Thus, in agreement with the
judge, we find that the General Counsel has estab-
lished facts sufficient to support an inference that the
Respondent’s animus against Bracht’s support for the
Union was a motivating factor in the decision to dis-
charge him. Wright Line, 251 NLRB 1083 (1980).6
We further find that the Respondent has not satisfied
its burden of showing that it would have discharged
Bracht in the absence of his protected activities. Id.
The Respondent was aware of the January 11 incident
almost immediately, yet it took no action against
Bracht for 3 months. The nature of the Respondent’s
contemporaneous concern about the incident was ex-
pressed by DeVittorio, who warned Lopez against
making further uninvited approaches to on-duty guards,
and reported to Torres that Lopez had agreed to refrain
from that conduct in the future. We agree with the
judge that DeVittorio appears to have viewed Lopez as
the one at fault for the incident.
Falk’s shifting and contradictory explanation of
Bracht’s discharge provides further support for our
finding. Thus, Falk variously testified that he alone,
and he in consort with others, made the decision to ter-
minate Bracht. Although the sole explanation given by
Falk to Bracht for the discharge was Bracht’s pur-
ported firearms violation, at the hearing Falk testified
that Bracht was discharged because he was a ‘‘lousy
employee’’ who had experienced a variety of perform-
ance problems, and that the January 11 incident was
simply the one that made Bracht ‘‘fall into the water.’’
The Respondent’s records reveal, however, that
Bracht’s disciplinary record was clear for 2 years prior
to Falk’s coercively interviewing Bracht about his
union activities on February 17 and the Respondent’s
issuance of the unlawful warning to Bracht that same
day.
(b) We affirm the judge’s denial of the Respondent’s
motion to reopen the record for further examination
and voir dire regarding an audiotape recording of the
April 6, 1996 meeting during which Bracht was dis-
charged. At the hearing, the judge established a reason-
able procedure for the admission of the tape and tran-
scriptions into evidence. He permitted the Respondent
and the General Counsel independently to submit into
evidence transcriptions of the audiotape, and reserved
the right to resolve any discrepancies based upon his
review of the audiotape. The parties’ versions of the
audiotape were in substantial accord. The General
Counsel accepted in substance the Respondent’s tran-
scription, noting two differences, which the judge
found ‘‘minor and inconsequential.’’ Thus, the judge
relied on the Respondent’s transcription. Furthermore,
the facts and circumstances surrounding Bracht’s dis-
charge were fully litigated and briefed. Thus, we find
no merit in the Respondent’s claim that it has been
prejudiced by the judge’s resolution of this matter. For
reasons given by the judge, we also reject the Re-
spondent’s claim that a clicking sound at one point in
a copy of the tape renders the tape unreliable.
We affirm the judge’s denial of the Respondent’s
motion to reopen the record to allow it to introduce,
as newly discovered evidence, a recording of a con-
versation between Bracht and employee Gonzalez
which was recorded on the reverse side of the tape of
the April 6 discharge meeting. Section 102.65(e)(1) of
the Board’s Rules and Regulations provides, in perti-
nent part, that a party to a proceeding may, because of
extraordinary circumstances, move after the close of
the hearing for reopening of the record to admit newly
discovered evidence. To prevail on its motion, the
movant must specify, inter alia, the prejudice to the
movant if the record is not reopened, and the result the
new evidence would require if adduced and credited.
We find that the Respondent has not satisfied these re-
quirements. We assume, arguendo, that the tape of the
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774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 In doing so, we do not pass on assertions made by the Respond-
ent, in its exceptions and brief, that Bracht ‘‘put the lives of employ-
ees in jeopardy,’’ ‘‘assaulted an employee,’’ ‘‘repeatedly used re-
spondent’s vehicles for his own personal use in violation of State
law,’’ and committed multiple firearms violations.
8 However, it does not affirmatively appear that state authorities
have finally ruled on the matter.
9 The relevant state and city laws and regulations were not placed
in evidence. There is no evidence establishing the impact, if any, of
the decision of the New York State Unemployment Compensation
Board on Brach’s ability to qualify for a gun license.
10 Even if the Respondent has no substantially equivalent position,
it remains under an obligation to reinstate Bracht to his prior posi-
tion if and when Bracht re-secures his gun license.
The Respondent’s offer of reinstatement must spell out these obli-
gations, and the obligation to assist in securing restoration of the gun
license.
11 The impact of the New York authorities’ disposition of Bracht’s
license application on the instant remedial order, if any, can be
raised at the compliance stage of these proceedings.
Bracht-Gonzalez conversation qualifies as newly dis-
covered evidence, because the Respondent apparently
did not receive the tape until the close of the hearing.
The Respondent does not allege, however, that the
Bracht-Gonzalez conversation is directly relevant to
events surrounding Bracht’s discharge, but only that it
bears generally on Bracht’s credibility. The judge’s
finding that Bracht’s discharge violated the Act is
based, not only on Bracht’s credibility, but on the
credited testimony of a number of other witnesses, evi-
dence contained in the Respondent’s version of the
transcript of the discharge meeting, and other evidence
set forth in the judge’s decision. Even assuming the
admissibility and the relevance of the Bracht-Gonzalez
conversation, the Respondent has not explained how it
will be prejudiced if the audiotape is not admitted into
the record or how the evidence would change the re-
sult we reach here. Accordingly, we grant the General
Counsel’s request that the transcript of the Bracht-
Gonzalez conversation, which is appended to the Re-
spondent’s exceptions and brief, be stricken from the
record.
(c) Having found that the Respondent discharged
Bracht because of his union activities, in violation of
Section 8(a)(3) and (1) of the Act, the judge rec-
ommended that the Respondent be required to reinstate
Bracht and take affirmative steps to assist Bracht in
obtaining restoration of his gun permit. The Respond-
ent has excepted to the judge’s recommended remedy.
It contends that Bracht has ‘‘violated multiple sections
of the [New York State] penal code and put the lives
of employees in jeopardy.’’ Thus, ‘‘[b]y law Epic can
not take [Bracht] back because he can not truthfully
obtain the necessary [gun] permits.’’ We agree with
the judge that a reinstatement remedy is warranted in
this case. For the reasons that follow, however, we
grant the Respondent’s exception, but only to the ex-
tent that it raises matters which ultimately must be re-
solved by the New York State and City gun licensing
authorities.7 We modify the recommended order ac-
cordingly.
The evidence indicates that, upon Bracht’s dis-
charge, the Respondent required that Bracht give the
Respondent his gun license. It appears that the Re-
spondent then sent the license to the local authorities
who revoked the license.8 The basis for this revocation
is unclear. For example, it could have been revoked
because of the discharge, or it could have been re-
voked because of Bracht’s conduct on January 11.
Since the Respondent forwarded the license to the au-
thorities because of the discharge, and since the dis-
charge was unlawful, we shall require the Respondent
to reinstate Bracht immediately to a position substan-
tially equivalent to that of armed guard pending final
adjudication of Bracht’s request for restoration of his
license, and to assist Bracht in seeking restoration of
the license. However, unless and until restoration is se-
cured, we shall not order reinstatement of Bracht to a
position requiring a gun license.
We view the instant order to reinstate Bracht as an
appropriate, measured exercise of our affirmative re-
medial authority, specifically designed to carry out our
statutory obligation to effectuate the policies of the
Act. Bracht was a union adherent discharged because
of his statutorily protected activity and in order to dis-
courage other employees from supporting the Union.
The Respondent’s contention that it discharged Bracht
in April 1995 because of an alleged history of work-
related problems culminating in the January 11 inci-
dent has been shown to be pretextual.
We recognize that Bracht’s ability to regain his gun
license and, thus, qualify for reemployment as an
armed guard, is a matter solely within the jurisdiction
of the New York State and city authorities.9 Accord-
ingly, as noted, we shall order the Respondent to rein-
state Bracht immediately to a position substantially
equivalent to that he previously held, pending final ad-
judication by the New York authorities of Bracht’s re-
quest for restoration of his gun license, and upon
Bracht’s regaining the license, to a position as an
armed guard.10 Thus, the Respondent has no obligation
to reinstate Bracht as an armed guard until he is prop-
erly licensed to carry a weapon. See De Jana Indus-
tries, 305 NLRB 845 (1991); Future Ambulette, 293
NLRB 884 (1989), enfd. as modified 903 F.2d 140 (2d
Cir. 1990).11
Finally, backpay (at the armed guard rate) runs from
the time of discharge until reinstatement to a substan-
tially equivalent position. If there is no such position,
backpay runs until Bracht secures substantially equiva-
lent employment elsewhere.
(2) Contrary to the judge and our dissenting col-
league, we find that the Respondent violated Section
8(a)(3) and (1) of the Act by transferring Nestor Gon-
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12 We correct the judge’s inadvertent reference to March 2, 1996,
as the date of the unlawful transfer. The unlawful transfer took place
on February 2, 1996. As discussed herein, the Respondent trans-
ferred Gonzalez on February 2, and again on March 2, 1996. Only
the February transfer was alleged to be unlawful.
13 We find that the amendment to the complaint in this case does
not run afoul of Sec. 10(b) of the Act and is not properly subject
to a defense of laches. The original charge in this case, Case 2–CA–
28188, filed February 13, 1995, alleged that the Respondent unlaw-
fully transferred Gonzalez to a less desirable shift and increased his
work hours. The amended charge, filed January 30, 1996, alleged,
in relevant part, that about January 24, 1995, the Respondent en-
gaged in unlawful interrogation of employees. As we fully discuss
in this decision, Gonzalez’s transfer occurred shortly after a meeting
on January 24, 1995, in which the Respondent and its attorney un-
lawfully interrogated and threatened Gonzalez and warned him be-
cause of his union activities, and threatened him with discharge if
he continued to engage in union activities. We find that the transfer
was part of a pattern of conduct by the Respondent aimed at imped-
ing Gonzalez’s union organizing activities. Thus, we find that the
conduct alleged to be unlawful in the amended charge is closely re-
lated to the conduct alleged in the original charge and is predicated
on the same legal theory. See Nickles Bakery of Indiana, 296 NLRB
927, 928 fn. 5 (1989).
14 DeVittorio did not contradict Gonzalez’ testimony in this regard.
15 There is no evidence regarding the number or types of assign-
ments that were available or that cash team 10 was among the avail-
able worksites offered to Gonzalez. Thus, there is no evidence as to
whether the assignment list included multiguard sites.
zalez on February 2, 1996,12 and by failing to reinstate
him to his former position of employment.
The judge found that, on January 24, 1995, Selwyn
Falk, the Respondent’s vice president of operations, di-
rected Gonzalez to meet with him and the Respond-
ent’s attorney, Aaron Lichtman, in Lichtman’s office.
Gonzalez found this ‘‘very unusual.’’ Lichtman asked
Gonzalez if he had passed out union authorization
cards to employees. Gonzalez admitted that he had
done so. Lichtman warned Gonzalez to stop distribut-
ing authorization cards and informed Gonzalez that the
warning would be made part of his employment record
and that he would be discharged if he continued to dis-
tribute the cards. Falk asked Gonzalez why employees
did not come to him instead of going to the Union.
The judge found, and we agree, that the Respondent
thus violated the Act by coercively interrogating Gon-
zalez,13 creating the impression that it kept his union
activities under surveillance, and threatening him with
discharge if he continued his union organizing activi-
ties.
For several months prior to late January, Gonzalez
and Alberto Roque had been working as partners on
‘‘cash team 10.’’ While working on the cash team,
Gonzalez reported daily to the Respondent’s office
where he came in contact with other employees. Gon-
zalez was summoned to jury duty on January 27. Ac-
cording to Gonzalez, when he returned to work on
February 1, Assistant Operations Manager DeVittorio
explained that he had ‘‘put someone on [cash team 10]
temporarily’’ because he thought Gonzalez would be
on jury duty for 2 weeks.14 He assigned Gonzalez to
guard a building in the South Bronx that was under-
going renovation, to keep squatters out of the building.
Initially there was a second guard assigned to the
South Bronx site, but the second guard soon was reas-
signed, leaving Gonzalez as the lone guard at the site.
Gonzalez only visited the Respondent’s offices once a
week, on Fridays, to pick up his paycheck.
In mid-February, Gonzalez learned from Roque that
Roque did not have a steady partner on cash team 10.
Gonzalez asked DeVittorio to reassign him to cash
team 10. DeVittorio told him that another employee
had that job; however, the Respondent’s own records
corroborate Roque’s assertion that several different
employees were assigned to cash team 10 during the
relevant period. On February 13, the Union filed an
unfair labor practice charge alleging that Gonzalez’s
transfer was unlawful.
On February 17, Gonzalez went to the Respondent’s
office to pick up his paycheck. He was speaking with
several coworkers about a block away from the Re-
spondent’s office when Falk approached, broke up the
discussion, and told Gonzalez that he did not want him
to ‘‘bother’’ the other guards. Falk left, and later re-
turned and told Gonzalez to ‘‘get off the street’’ and
‘‘stop bothering the guards.’’ That same day
DeVittorio issued Gonzalez a disciplinary notice for
‘‘soliciting’’ an on-duty employee in contravention of
the Respondent’s ‘‘solicitation policy.’’ The Respond-
ent had not ever before promulgated a lawful no-solici-
tation rule. Thus, the judge found, and we agree, that
the Respondent adopted its no-solicitation policy in
order to inhibit employees’ exercise of their Section 7
rights, unlawfully restricted employees in the exercise
of their Section 7 rights, and unlawfully disciplined
Gonzalez.
On March 2, in response to the unfair labor practice
charge filed by the Union in protest of Gonzalez’s
transfer, the Respondent permitted Gonzalez to select
a new worksite from among assignments then avail-
able. Gonzalez selected another single-guard site in
Manhattan.15 The Respondent began delivering Gon-
zalez’s paycheck to him onsite, thus eliminating the
opportunity for Gonzalez to visit the Respondent’s of-
fice, and further isolating him from coworkers.
In these circumstances, the judge nonetheless found
that the General Counsel did not sustain his burden to
show that the Respondent transferred Gonzalez in
order to impede his union organizing efforts. Although
the judge found the timing of Gonzalez’s transfer sus-
picious, he found that even before Gonzalez began his
union organizing activities, the Respondent had as-
signed Gonzalez to other undesirable buildings where
his access to coworkers was similarly restricted. Ac-
cordingly, the judge concluded that evidence as to the
timing of the transfer is not sufficient to support a
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776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In that regard, we find that American Furniture Co., 293 NLRB
408, 415 (1989), relied on by the judge, is distinguishable from this
case. There, unlike this case, the transfer involved a change of work
assignment at the same location. There was no evidence that the
change in assignment served to isolate a union activist from cowork-
ers.
17 The Respondent’s vice president of operations, Selwyn Falk,
testified as ‘‘part of the interview process, [employment applicants]
are told that they must be available to work any shift, any borough.’’
But he also acknowledged that when an employee is dissatisfied
with an assignment, ‘‘we try to accommodate people. If there was
a mitigating circumstance, we might accommodate them.’’
18 Indeed, the Respondent’s transfer of the second guard away
from the Bronx site soon after Gonzalez’ arrival suggests that there
were no problems of that magnitude. In its answering brief, the Re-
spondent acknowledges that the second guard was removed at the
behest of its client, who did not want to employ two guards at the
site.
19 On the first day of the hearing, and over the Respondent’s ob-
jection, the judge granted the General Counsel’s motion to amend
the complaint to include, inter alia, allegations that in February 1996,
the Respondent confiscated union authorization cards from employ-
ees, created the impression of surveillance, and engaged in surveil-
lance of employees. The Respondent did not renew its objection to
this amendment in its exceptions and brief. As discussed here, how-
ever, in its brief answering the General Counsel’s exceptions, the
Respondent defends its conduct on the basis of its purported security
concerns.
finding of discrimination. In all the circumstances
present in this case, we cannot agree that the Respond-
ent’s work assignment policy and practice are disposi-
tive of the issue of Gonzalez’s transfer.16
Gonzalez was known to the Respondent as a union
activist and, as shown, the Respondent engaged in a
pattern of coercive conduct, including unlawful threats,
interrogation, and disciplinary action, aimed at imped-
ing Gonzalez’s union activities. Gonzalez had been as-
signed to cash team 10 for an extended period of time
before he was summoned to jury duty. There is no evi-
dence that the Respondent had contemplated reassign-
ing Gonzalez prior to that time. After Gonzalez’s brief
absence for jury duty, and while the Respondent was
engaged in a pattern of unlawful antiunion conduct, the
Respondent reassigned Gonzalez to a lone worksite,
thereby substantially reducing his contacts with other
employees. See New Process Co., 290 NLRB 704,
722–723 (1988). We find this evidence sufficient to
support an inference that animus against union activi-
ties was a motivating factor in the transfer of Gon-
zalez. Wright Line, 251 NLRB 1083 (1980).
We further find that the Respondent has not satisfied
its burden of demonstrating that it would have trans-
ferred Gonzalez in the absence of his union activities.
Id. The Respondent offers several explanations for the
transfer. First, it contends that it had permanently re-
placed Gonzalez on cash team 10, making his reassign-
ment necessary. As shown above, credited evidence
disproves that contention. Moreover, under the cir-
cumstances present here, we find unpersuasive the Re-
spondent’s assertion that Gonzalez’ February 2 transfer
was consistent with the Respondent’s policy reserving
complete discretion over work assignments and its past
practice of reassigning Gonzalez. While the record dis-
closes that the Respondent exercised discretion to
make and change employee assignments, it does not
establish that in exercising such discretion the Re-
spondent disregarded employee preferences, such as
Gonzalez’ desire to return to cash team 10 on which
he had worked for several months before his jury duty
and on which he had not been permanently replaced.17
The Respondent also contends that it transferred
Gonzalez to the Bronx site to resolve problems that
had arisen there and to ‘‘keep the men in order.’’ As
shown, except for a short period of time when a sec-
ond guard was posted at the site, there were no
‘‘men’’ for Gonzalez to keep in order. Moreover, the
record does not contain evidence corroborating the Re-
spondent’s bare claim that unusual problems had arisen
at the Bronx site or that the Respondent had been con-
templating the addition of a second guard.18 Thus, we
find that the reasons proffered by the Respondent for
transferring Gonzalez on February 2 are pretextual, i.e.,
they were not the real reasons for the transfer.
Accordingly, we find that by transferring Gonzalez
on February 2, 1995, the Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
(3) We grant the General Counsel’s exception to the
judge’s apparently inadvertent failure to conclude that
the Respondent violated Section 8(a)(1) of the Act
when it engaged in surveillance of employees in early
1996, as alleged in an amendment to the unfair labor
practice complaint.19
The judge credited testimony by employee Gonzalez
that, on a Friday early in 1996, he, Louis Bracht, and
Union President Ralph Purdy stationed themselves out-
side the building where the Respondent’s offices are
located and distributed union authorization cards to
guards as they arrived to pick up their paychecks. The
Respondent had posted its supervisors in and around
the front of the building. Two of the supervisors fol-
lowed Gonzalez as he spoke with coworkers and hand-
ed out authorization cards. Some guards used hand and
eye gestures to indicate to Gonzalez that they were
being watched by the supervisors. When Purdy handed
an authorization card and flyer to a guard, several su-
pervisors surrounded the guard and led him into the
building.
Based on this evidence, the judge found that the Re-
spondent unlawfully impeded the Union in its attempt
to distribute its literature. The judge failed to address
the additional complaint allegation that the Respond-
ent’s conduct also constituted unlawful surveillance of
employees’ union activities. We find that it does.
The test for finding a violation of Section 8(a)(1) is
‘‘whether the employer engaged in conduct which, it
may reasonably be said, tends to interfere with the free
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777EPIC SECURITY CORP.
20 The union representatives conducted their activities on the pub-
lic sidewalk in front of the building in which the Respondent main-
tained its office. The Respondent has not claimed an exclusory prop-
erty interest in the sidewalk area.
21 We agree with the General Counsel that the Respondent’s reli-
ance on McGraw Edison Co., 259 NLRB 702 (1981), is misplaced.
There, the Board found that the employer had reasonably anticipated
violence. Thus, the Board found lawful the employer’s posting su-
pervisors outside its premises while union organizers were distribut-
ing authorization cards. Here, there is no evidence that the Respond-
ent had reason to fear violence among employees on paydays.
22 Thus, this is not a case in which the employer was able cas-
ually, and in the ordinary course of business, to observe employees
engaging in public union activities. See Sands Hotel & Casino, 306
NLRB 172 (1992).
23 For example, the Respondent’s vice president, Falk, and Admin-
istrative Manager Chevalier testified that the Respondent addressed
neighbor’s complaints about loitering by expanding its offices to
provide more room inside the building, particularly in the area where
the payroll was processed.
exercise of employee rights under the Act.’’
Williamhouse of California, Inc., 317 NLRB 699, 713
(1995), citing American Freightways Co., 124 NLRB
146 (1959). Here, the Respondent posted its super-
visors in front of its offices where they observed the
Respondent’s employees as they reported for work.20
The supervisors watched to see which employees
talked to the union representatives and interfered with
those contacts. Thus, we find that the General Counsel
has presented a prima facie case that the Respondent
was engaged in surveillance of its employees union ac-
tivities.
In agreement with the judge, we find unpersuasive
the business justification profferred by the Respondent
generally for the presence of the supervisors outside its
offices, i.e., that it was motivated to assign supervisors
to monitor employee movements near its building be-
cause of safety and property concerns,21 past experi-
ence with theft and vandalism, and complaints from
neighboring businesses about guards loitering around
the front of the building, making noise, and depositing
trash. Although the record generally supports the Re-
spondent’s claim that it has posted guards outside its
offices from time to time since about 1989, there is no
convincing evidence that these guards were supervisors
or that they were posted outside the building, as op-
posed to inside the lobby and the hallways and the
parking lot. In fact, the Respondent admitted at the
hearing that it did not start posting supervisors outside
the building until early 1996.22
Further, the Respondent has not demonstrated a
causal connection between the incidents which purport-
edly gave rise to its safety and property concerns and
its decision to post supervisors outside its offices in
January 1996. Some of the incidents occurred remotely
in time, and thus they are not shown to have a causal
connection to the posting of supervisory guards in
1996, i.e., a 1994 change in payroll procedure and a
1993 robbery. The Respondent’s theft and vandalism
concerns centered on vehicles in the Company’s park-
ing lot, which is located at some distance from the Re-
spondent’s offices. Thus, there is no apparent causal
connection between vehicle thefts and vandalism and
the posting of supervisory guards in front of its offices.
There is no clear evidence establishing when the Re-
spondent received complaints from neighboring busi-
nesses. Moreover, the record is unclear regarding the
connection between those complaints and the decision
to post guards in front of the building.23
As reasonably perceived by employees, the only
purpose that emerges from the record before us for the
Respondent’s posting of supervisors in front of its of-
fice on paydays, beginning in January 1996 at the
height of its employees’ union organizing campaign,
was to observe employees who had contact with the
union representatives and to interfere with those con-
tacts. This is a classic example of unlawful surveil-
lance of employees’ union activities. We find that it
violated Section 8(a)(1).
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization as defined in
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
in interfering with, restraining, and coercing its em-
ployees in the exercise of their rights under Section 7
of the Act by having:
(a) Coercively interrogated them as to their support
for the Union.
(b) Threatened them with discharge if they contin-
ued to support the Union.
(c) Created the impression among them that their ac-
tivities on behalf of the Union were being kept under
surveillance.
(d) Directed them not to discuss the Union among
themselves.
(e) Posted a notice which encouraged its employees
to inform it of the identity of employees who solicit
the signing of union authorization cards.
(f) Impeded the distribution of union authorization
cards to its employees.
(g) Engaged in surveillance of employees’ union ac-
tivities.
(h) Attempted to dissuade a witness from testifying
in this case.
(i) Engaged in the conduct set forth in the following
paragraph.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act
in discriminating against its employees with respect to
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778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 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.’’
their terms and conditions of employment in order to
discourage them from joining or supporting the Union
by having:
(a) Issued a warning, dated February 17, 1995, to
Nestor Gonzalez.
(b) Transferred Nestor Gonzalez to a new worksite
on February 2, 1995.
(c) Discharged Louis Bracht on April 6, 1995.
5. The unfair labor practices described above in
paragraphs 3 and 4 affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in any of the
other unfair labor practices alleged in the consolidated
complaint, as amended, in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Epic Security Corporation, Bronx, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about ac-
tivities on behalf of the United Federation of Police
Officers (the Union).
(b) Discharging or otherwise discriminating against
any employee for supporting the Union.
(c) Reassigning or transferring employees in order to
interfere with their union activities.
(d) Threatening its employees with discharge to dis-
courage them from supporting the Union.
(e) Engaging in surveillance of employees’ activities
on behalf of the Union.
(f) Creating the impression among employees that
their activities on behalf of the Union are being kept
under surveillance.
(g) Directing its employees not to discuss the Union.
(h) Posting a notice encouraging its employees to in-
form it of the identity of those who solicit employees
to sign union authorization cards.
(i) Impeding the distribution of union authorization
cards.
(j) Attempting to dissuade a witness from testifying
in an unfair labor practice proceeding.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Louis Bracht immediate employment to a position sub-
stantially equivalent to that of armed guard, pending
restoration of his license to carry a weapon; assist
Louis Bracht in obtaining restoration of his license to
carry a weapon; and, upon restoration of his license to
carry a weapon, offer Louis Bracht immediate and full
reinstatement to his former job or, if it no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Louis Bracht whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge and notify Louis Bracht in writing that this has
been done and that the discharge will not be used
against him in any way.
(d) Within 14 days from the date of this Order, offer
Nestor Gonzalez a reassignment to his former job on
cash team 10 or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed.
(e) Make Nestor Gonzalez whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the remedy section of the decision.
(f) Within 14 days from the date of this order, re-
move from its files any reference to the disciplinary
notice of February 17, 1995, given Nestor Gonzalez
and notify him in writing that this has been done and
that the notice will not be used against him in any
way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post
at its New York City facility copies of the attached no-
tice marked ‘‘Appendix.’’24 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since January 24, 1995.
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779EPIC SECURITY CORP.
1 The Respondent reasonably believed that Gonzalez’ jury duty
would be longer. Thus, the Respondent replaced him.
2 My colleagues suggest that the single-guard sites were the only
ones available. The General Counsel has not shown this to be so,
and he has the burden to prove an intention to isolate Gonzalez.
3 The Respondent departed from company policy in this respect to
benefit Gonzalez. The policy is that an employee who does not like
his assignment has only the option of resignation.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER HURTGEN, dissenting in part.
I agree with the administrative law judge that the
Respondent did not violate the Act by transferring
Nestor Gonzalez to a new worksite on February 2.
Gonzalez was summoned to jury duty on January
27, 1995. Because of this, the Respondent replaced
him as a member of cash team 10. When Gonzalez re-
turned from jury duty on February 1, his position on
cash team 10 had been filled.1 The Respondent thus
assigned him to a South Bronx building. In mid-Feb-
ruary, Gonzalez asked to be transferred back to cash
team 10. The Respondent replied that there was no
opening on cash team 10. However, on March 2, the
Respondent told Gonzalez that he could transfer to any
available assignment. Gonzalez selected a single-guard
site in Manhattan.2
My colleagues concede that the Respondent had the
discretion to make assignments. They simply contend
that the record does not establish that the Respondent
‘‘disregarded employee preferences.’’ However, neither
does the record establish that the Respondent always
honored such preferences. Thus, the General Counsel
has not established that the Respondent departed from
any past practice in not assigning Gonzalez back to
cash team 10.
The General Counsel argues that the Respondent
sought to isolate Gonzalez by assigning him to sites
where he would be alone. The contention has no merit.
First, but for Gonzalez’ jury duty, he would not have
been reassigned from cash team 10. Second, when
Gonzalez returned, he was assigned to a building
where there was another employee. Third, after Gon-
zalez protested the assignment, he was given an as-
signment of his choice.3 As noted, Gonzalez chose a
single-guard site.
In these circumstances, I see no basis for overturn-
ing the judge’s well-considered finding that the Gen-
eral Counsel has not established that the Respondent
transferred Gonzalez in order to isolate him.
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 discharge or otherwise discriminate
against any of you for joining or supporting the United
Federation of Police Officers (the Union) or any other
union.
WE WILL NOT transfer or reassign any of you to
interfere with or discourage support for the Union.
WE WILL NOT issue disciplinary notices to employ-
ees to discourage support for the Union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you with discharge for sup-
porting the Union.
WE WILL NOT engage in surveillance of your union
activities or create the impression among employees
that your activities on behalf of the Union were being
kept under surveillance.
WE WILL NOT direct you not to discuss the Union
among yourselves.
WE WILL NOT post a notice which encourages you
to inform us of the identity of employees who solicit
the signing of union authorization cards.
WE WILL NOT impede the distribution of union au-
thorizations card to our employees.
WE WILL NOT attempt to dissuade a witness from
testifying in this case.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Louis Bracht immediate reinstate-
ment to a job substantially equivalent to the job of
armed guard and WE WILL assist him in obtaining res-
toration of his license to carry a weapon and, upon the
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780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
restoration of his license to carry a weapon, WE WILL
offer him back, in full, his job as an armed guard.
WE WILL make Louis Bracht whole for any loss of
earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files all references to
the unlawful discharge of Louis Bracht, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discharge will not be used
against him in any way.
WE WILL, within 14 days from the date of the
Board’s Order, offer Nestor Gonzalez a reassignment
to his previous job on cash team 10 or to a substan-
tially equivalent job.
WE WILL make Nestor Gonzalez whole for any loss
of earnings and other benefits, less any net interim
earnings, plus interest.
WE WILL remove from our files all references to the
disciplinary notice, dated February 17, 1995, that we
issued to Nestor Gonzalez, and WE WILL, within 3 days
thereafter, notify him in writing that this has been
done.
EPIC SECURITY CORPORATION
Kevin M. Smith, Esq. and Jessica Drangel, Esq., for the Gen-
eral Counsel.
Aaron C. Litchman, Esq. and Brian K. Condon, Esq., for
Epic Security Corporation.
DECISION
JAMES F. MORTON, Administrative Law Judge. These
cases were consolidated for hearing. The consolidated com-
plaint, as amended, alleges that Epic Security Corporation
(the Respondent) has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) by having coercively interrogated its
employees as to their support for United Federation of Police
Officers (the Union), threatened them with reprisals and took
other unlawful action to discourage them from joining the
Union, transferred and disciplined an employee, and dis-
charged another because they assisted the Union. The answer
filed by the Respondent places those allegations in issue. I
heard this case in New York City on May 1, 2 , 21, and 22,
1996. Upon the entire record, including my observation of
the demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent provides security services for banks and
other commercial customers. In its operations annually, it
meets the Board’s indirect outflow standard for asserting ju-
risdiction.
II. LABOR ORGANIZATION
The Respondent, in its answer, has denied the allegation
in the complaint that the Union is a labor organization as de-
fined in the Act. That same issue was litigated in a prior rep-
resentation case involving the Respondent, Case 2–RC–
21513. Relevant portions of the record in that case were re-
ceived as a joint exhibit.
The Union had filed a petition in that case, seeking to rep-
resent for purposes of collective bargaining, the guards in the
Respondent’s employ. Based on the record made at the hear-
ing therein, a Decision and Direction of Election issued on
August 11, 1995, finding that the Union met the statutory
definition of a labor organization. The joint exhibit in the
record before me provides no basis to hold otherwise. I,
therefore, find that the Union is a labor organization as de-
fined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Organizational Effort
The guards in the Respondent’s employ have been unrep-
resented for purposes of collective bargaining. In late 1994,
alleged discriminatee Nelson Gonzalez, a guard whom the
Respondent contends in a supervisor as defined in the Act
as discussed separately below, telephoned the Union after
talking with several other guards. In December of that year
and in January 1995 (all dates hereafter are for 1995 unless
stated otherwise), he gave union authorization cards to
guards in the hallways and bathroom adjacent to the Re-
spondent’s office located in a building in New York City.
B. Gonzalez’ Status as an Employee or Supervisor;
Alleged Unlawful Interrogation and Threat on
January 24
1. Gonzalez’ status
The complaint alleges that, on January 24, the Respondent,
by its attorney, Aaron Lichtman, and its president, Selwyn
Falk, unlawfully interrogated its employees about the
Union’s organizational effort, threatened them with discharge
to discourage them from supporting the Union, and engaged
in other coercive conduct specified therein. In support thereof
the General Counsel offered the testimony of Nestor Gon-
zalez. The Respondent objected to the admission of his testi-
mony, asserting that Gonzalez is a supervisor as defined in
the Act, that thus his testimony about a meeting he had with
counsel for the Respondent is barred by the attorney-client
privilege and that, in any event, because Gonzalez is a super-
visor and not an employee protected by the Act, the Re-
spondent does not violate the Act by questioning him re-
specting his union activities.
The Decision and Direction of Election in Case 2–RC–
21513, discussed above, referred to Gonzalez as a field su-
pervisor; it did not set forth a specific finding as to his sta-
tus. Individuals classified as field supervisors, however, were
held therein to be supervisors as defined in the Act and thus
were excluded from the unit found appropriate therein. The
Respondent’s brief refers to that holding in furtherance of its
contention that Gonzalez is a supervisor as defined in the
Act. The General Counsel however was free to develop, in
the instant case, evidence as to whether an unfair labor prac-
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781EPIC SECURITY CORP.
tice has been committed via the alleged unlawful interroga-
tion of Gonzalez or to put it directly, whether Gonzalez is
a supervisor or an employee protected by Section 7 of the
Act. In that regard, see Carry Companies of Illinois, Inc.,
311 NLRB 1058 fn. 1 (1993); Serv-U-Stores, Inc., 234
NLRB 1134 (1978), and cases discussed therein.
There is no evidence in the record of the representation
case as to the specific duties of Gonzalez. Gonzalez started
working for the Respondent in 1992, assigned as a guard at
various apartment buildings and to courier duties. For a pe-
riod of several months in late 1993 and early 1994, he was
promoted to a dispatcher’s job, a supervisory position. At
some point prior to 1995, he was given the rank of lieuten-
ant. He quit the dispatcher’s job in early 1994 to work again
as a guard at different apartment buildings but he retained
the rank of lieutenant. The Respondent placed in evidence
documents it contends support its contention that Gonzalez
is a supervisor. While at one of those buildings, he filled out
and submitted to the Respondent’s office several ‘‘Unusual
incident reports,’’ e.g., in one, he wrote that he advised a
child, who lived in the building, not to play under the scaf-
folding in the courtyard area. He noted on those reports that
his title was ‘‘Site Supervisor-armed officer.’’ In the rep-
resentation case decision referred to above, site supervisors
were found to be employees eligible to vote in the election
directed therein. On January 24, Gonzalez and another guard
were assigned to a ‘‘cash team’’ which required them to pick
up money from customers for delivery to banks. When they
completed their run that day, Gonzalez complained to Joseph
DeVittorio, the Respondent’s assistant operations manager,
that the vehicle to which he and his partner had been as-
signed was filthy. When DeVittorio determined the identity
of the employee who had last used that vehicle before Gon-
zalez and his partner used it, he instructed Gonzalez to fill
out a notice of disciplinary action against that employee.
Gonzalez then wrote on the form that the vehicle was left
in a deplorable condition. He testified that he did not check
the boxes on the form which were marked with Xs; boxes
headed warning, unsatisfactory work performance.
There is nothing upon which to find that Gonzalez was a
supervisor within the meaning of Section 2(11) of the Act.
That he had a supervisory title is no basis to conclude that
he possessed one of the supervisory indicia set out in that
Section. See T. K. Harvin & Sons, Inc., 316 NLRB 510, 530
(1995). Accordingly, I find that Gonzalez is an employee en-
titled to the protection of Section 7 of the Act.
2. Alleged unlawful interrogation and threat
Gonzalez testified credibly as to a meeting he had with
Falk and the Respondent’s counsel on the same day, January
24, that DeVittorio directed him to fill out the disciplinary
notice discussed above. Falk, the Respondent’s vice president
for operations, testified for the Respondent as to the meeting.
His account was not impressive. Counsel for the Respondent
did not testify. Gonzalez’ account disclosed that DeVittorio
escorted him to the office of the Respondent’s counsel; that
Gonzalez viewed this as very ‘unusual’; and that, there,
counsel for the Respondent asked him if he had given union
authorization cards to employees and, when he said he did,
he was given a warning and told that it would be made part
of his record. He also was told that he would be discharged
if he continued to hand out union cards. Falk was present;
at one point, he asked Gonzalez why the employees did not
come to him instead of going to the Union.
As there is no evidence that Gonzalez was openly a sup-
porter of the Union, or that the Respondent had any valid
reason to question him respecting his union activities, and in
view of the contemporaneous threat made to him, I find that
the Respondent, on January 24, coercively interrogated him
as to his union sympathies and threatened him with discharge
if he continued to assist the Union’s organizational effort.
See Medical Center of Ocean County, 315 NLRB 1150,
1154 (1994). Further, in informing Gonzalez that it was
aware that he distributed union authorization cards, it unlaw-
fully created the impression that it kept under surveillance
his activities on behalf of the Union. The Respondent’s con-
tends that testimony of the alleged unlawful interrogation is
inadmissible under the doctrine of attorney-client privilege in
that its counsel, in questioning Gonzalez, was acting in fur-
therance of the Respondent’s legal interests. The attorney-cli-
ent privilege does not obtain in the circumstances of this
case. The Respondent’s contention is without merit. See
Tamper, Inc., 207 NLRB 907 (1973).
C. Alleged Discriminatory Transfer of Gonzalez
In January, Gonzalez had been working for several months
as a member of a two-member cash team whose job was to
collect moneys from customers for deposit in banks. On Jan-
uary 27, Gonzalez was called to jury duty. He returned to
work on February 1 but was not reassigned to the cash team;
instead, DeVittorio assigned him to work as a guard at a
drug infested building in the south Bronx. Gonzalez was told
in mid-February by his former cash team partner that he did
not have a steady partner. Gonzalez asked DeVittorio to reas-
sign him to the cash team job. DeVittorio told him that an-
other employee had that job. Previous to his assignment to
the cash team, Gonzalez had worked as a guard for the Re-
spondent at other drug infested apartment buildings and also
as a courier. On February 13, the Union filed the initial un-
fair labor practice charge in this proceeding, alleging that
Gonzalez’ transfer was unlawful. On March 2, the Respond-
ent told Gonzalez to select his own jobsite. He did so and
testified that he has no desire to leave it.
When working as part of a cash team, Gonzalez reported
to the Respondent’s office daily where he met with many of
the other guards; in contrast, his assignment to the apartment
building in the south Bronx kept him away from that office,
except for 1 day a week when he picked up his paycheck.
The General Counsel contends that the Respondent’s trans-
fer of Gonzalez to an undesirable building shortly after the
Respondent had coercively interrogated and threatened him,
coupled with the fact that the transfer to that building pre-
vented him from daily contact with coworkers and with Gon-
zalez’ testimony that his former cash team partner told him
that he was not working with a regular replacement after his
transfer, established that the Respondent’s decision to trans-
fer Gonzalez on March 2 was aimed at impeding Gonzalez
in his efforts to solicit his coworkers to support the Union.
The timing of the transfer is suspicious but the evidence also
shows that Gonzalez, prior to the Union’s advent, had been
assigned to other undesirable buildings where it seems his
daily access to coworkers was similarly restricted. Evidence
as to the timing of the transfer is not sufficient in this case
to support a finding of discrimination. See American Fur-
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782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
niture Co., 293 NLRB 408, 415 (1989). I thus find that the
General Counsel has not sustained the burden of proof re-
specting this allegation.
D. Alleged Coercion on February 17
The complaint alleges that the Respondent, by Falk, on
about February 17, unlawfully directed its employees not to
talk about the Union, coercively interrogated them about
their union activities, threatened them with discharge in retal-
iation for their union activities, and created the impression
among them that it was keeping their union activities under
surveillance.
Gonzalez testified that, on that day, after he had picked up
his paycheck at the Respondent’s facility and while he was
talking to several coworkers about a block distant from the
Respondent’s building, Falk approached them and told him
that he did not want him to bother the other guards. Falk
asked one of the others there, alleged discriminateee Louis
Bracht, if he was on duty and when Bracht replied replied
that he was, Falk ordered him to go to the Respondent’s of-
fice. Falk left with Bracht but returned later to tell Gonzalez
to get off the street and to stop bothering the guards.
Bracht testified as follows respecting the February 17
events. He reported for work in uniform but, as his partner
had not arrived, the dispatcher told him that he could go out
to eat. Outside, he met Gonzalez and several other guards.
Falk came by and told him to go to the office as he was on
duty. Falk followed him and, when they were in the elavator,
Falk told him that he was ‘‘out of here’’ and that he was
not supposed to be talking ‘‘about that’’ while on duty.
When he asked Falk what he meant by ‘‘that,’’ Falk repeated
the comment. Shortly afterwards, he was called to Falk’s of-
fice where Falk asked him where the meeting was going to
be held. (The Union held a meeting of the Respondent’s em-
ployees that evening.) When Bracht professed ignorance,
Falk told him not to play games as he would find out from
one of his sources. When Bracht told him that he still did
not know what he was talking about, Falk told him to ‘‘get
out of here and get back to work.’’
In February, the Respondent posted a no solicitation rule.
Until then, no such rule had been promulgated. A copy of
that notice was not made part of the record in this case.
Falk testified that, on February 17, when he overheard
Gonzalez talking about the Union with other guards, he told
the other guards to go to the office and they left. When
asked by the Respondent’s counsel at the hearing if he ever
asked Bracht about the Union, he responded, ‘‘No.’’ Falk
further testified that, based on what he had overheard, he
issued a disciplinary notice to Gonzalez. The notice is dis-
cussed separately below.
Gonzalez was issued a notice of disciplinary action by
DeVittorio, dated February 17, which recited (a) that Gon-
zalez’ ‘‘soliciting’’ an employee while employee was on
duty, in effect, contravened the Respondent’s ‘‘Solicitation
Policy,’’ (b) that a copy of that policy was posted in the of-
fice, and (c) that a further violation of the policy may lead
to termination of his employment. Gonzalez and Bracht testi-
fied that they never had seen any such Policy as of that time.
The Respondent did not produce any document to corrobo-
rate the statement in the notice that a copy of the policy had
been posted prior to February 17.
I credit the accounts of Gonzalez and Bracht.
The credited evidence establishes that, on February 17, the
Respondent, by Falk, interrogated its employees as to their
union activities when Falk asked Bracht where the Union
meeting would be held. For the reasons discussed above, this
interrogation was unlawful in view of the contemporaneous
coercive conduct noted next. The Respondent unlawfully cre-
ated the impression of surveillance of its employees’ union
activities when Falk told Bracht that he had sources which
kept him informed about their union activities. See T & J
Trucking Co., 316 NLRB 771, 779 (1995). Gonzalez credibly
testified that he had no knowledge, as of February 17, of any
rule against solicitation maintained by the Respondent. The
Respondent offered no probative evidence that it then had or
maintained a lawful no solicitation rule. Rather, it adopted
and implemented a no solictation policy directed against the
exercise by its employees of their right to discuss the Union.
Thus, when Falk told both Gonzales and Bracht that they
could not talk about the Union, the Respondent impliedly
warned them that they faced disciplinary action if they con-
tinued to discuss the Union and thus, it unlawfully restricted
employees as to their rights under Section 7 of the Act to
discuss the Union. It further violated the law when
DeVittorio issued a notice of disciplinary action to Gonzalez
because he discussed the Union with his coworkers and by
warning him in that notice that he could be discharged for
doing so. T & J Container Systems, supra. The General
Counsel construes Falk’s statement to Bracht that he ‘‘was
out of here’’ as a direct threat of discharge. Falk’s use of vir-
tually that same phrase later in the conversation when he told
Bracht to get to work, however, militates against such a find-
ing. In any event, the totality of Falk’s remarks to Bracht
constituted, as found above, an unlawful implied threat of
disciplinary action.
E. The Respondent’s March 24 Bulletin to Employees
On March 24, the Respondent posted on its bulletin board
a document signed by Falk and addressed to its employees
which called the Union’s president a ‘‘con man’’ and which
contained the following paragraph:
If (the Union’s president) or his stooges show up at
your worksite, you don’t have to talk to them. You can
immediately call the (Respondent’s dispatcher) or any
. . . supervisor for help.’’
A former supervisor, called as a witness by the General
Counsel respecting other aspects of this case, stated during
his examination by the Respondent that one of his duties was
to ensure that guards had no visitors when on duty. The Re-
spondent relies on this testimony respecting its position that
the quoted excerpt from the March 24 bulletin was a lawful
statement.
The bulletin, however, did not purport to state or restate
any nondiscriminatory work rule but, rather, made it clear to
employees that that should notify the Respondent if they
were solicited to support the Union. In that context, the Re-
spondent impeded its employees respecting the exercise by
them of their rights under Section 7 of the Act. See Arcata
Graphics/Fairfield, Inc., 304 NLRB 541 (1991), and cases
discussed therein.
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783EPIC SECURITY CORP.
1 The Respondent’s motion to reopen dated July 11, 1996; its letter
thereon dated July 17, 1996; the General Counsel’s July 17 letter in
opposition; the Respondent’s July 18 letter; the General Counsel’s
July 19 letter; and my letter of July 19 advising that I would defer
ruling on the motion to consider its merits in context with the whole
record, are all received in evidence as ALJ Exhs. 1(a), (b), (c), (d),
(e), and (f), respectively.
F. Bracht’s Discharge
The complaint alleges that Louis Bracht, a guard, was dis-
charged by the Respondent because of his activities on behalf
of the Union; the Respondent contends that he was dis-
charged for other reasons discussed below.
Bracht worked for the Respondent as a guard from July
1990 until his discharge on April 6. He signed an authoriza-
tion card for the Union in December 1994 and distributed au-
thorization cards among other guards. As discussed above, he
was unlawfully questioned by Falk on February 17 about a
Union meeting scheduled for that night, a meeting he at-
tended. The clear inference drawn from the nature of his in-
terrogation by Falk on February 17 is that Falk was aware
of Bracht’s support for the Union. The Union filed the peti-
tion in the representation case discussed above on February
21; it was during the course of the investigation of that peti-
tion by the Board’s regional office that Bracht was dis-
charged.
Bracht testified as follows. He was discharged on April 6.
He was told by Falk on that day that he, Falk, had just been
informed by a security officer that Bracht and his partner,
Nelson Torres, had molested him. Bracht said he knew the
officer that Falk referred to and that he, Bracht, was just
playing with him. Falk said the officer did not think that
Bracht was playing with him, that Bracht had thrown the of-
ficer against the truck to pat him down and asked that officer
if he was wired. Bracht denied having done so and told Falk
that he had never touched his gun. Falk, referring to another
incident, said that one of the Respondent’s officers had been
shot because somebody was horsing around. Falk then told
Bracht that he was fired for menacing and for violation of
New York City’s pistol rules and regulations.
Falk’s account follows. On April 6, he received a report
that Bracht had been involved in an incident which involved
his having publicly embarrassed another employee and which
also involved a firearms violation. He told Bracht that he had
better have a good reason for his actions. Bracht admitted
that he threw the other employee up against the vehicle, had
put his hand on his revolver, patted the other employee down
to determine if he carried a gun, and that all this was done
on a public street. Falk then decided to discharge Bracht as
Bracht’s statement to him in this meeting ‘‘was the one step
that made him fall into the water’’ in view of his past record
of a prior unauthorized use of a firearm, unauthorized use of
a company vehicle and his continued latenesses. Falk an-
swered in the affirmative when asked by the Respondent’s
counsel if he then discharged Bracht. He did not testify as
to what he said, if anything, to Bracht in discharging him.
The reference to the unauthorized use of a vehicle referred
to a warning given Bracht on February 17; the reference to
latenesses appears to pertain to warnings issued Bracht for
having been late on February 21 and 22. Those warnings
were the only ones issued to Bracht in the prior 2 years. Falk
also testified that, as of the date of Bracht’s discharge, he
had no knowledge that Bracht supported the Union.
Bracht had taperecorded his meeting with Falk on April 6.
In accordance with the procedure outlined just before the
close of the hearing, the General Counsel and the Respond-
ent afterwards submitted their respective transcripts of the
tape. The transcript submitted by the General Counsel,
premarked as General Counsel’s Exhibit 17 and received in
evidence, is renumbered as General Counsel’s Exhibit 17(a).
The Respondent’s first transcript is marked and received as
General Counsel’s Exhibit 17(b). The Respondent’s second
transcript, accepted in substance by the General Counsel as
noted in the next sentence, is marked and received as Gen-
eral Counsel’s Exhibit 17(c). The General Counsel has ac-
cepted as accurate this transcript submitted by the Respond-
ent, noting two differences, both minor and inconsequential.
Nontheless, the Respondent has moved to reopen the hearing
as the copy of the tape it received produced a click during
the playing of the early part of the meeting. It contends that
it should be allowed to call an expert witness to determine
whether the tape has been tampered with. The motion is de-
nied as the Respondent’s transcript of the tape and the Gen-
eral Counsel’s are in substantial accord.1 Moreover, the Re-
spondent has not asserted what specifically it contends may
have been changed and it is not appropriate to expend the
Board’s resources based on a speculation that the click heard
on the Respondent’s copy of the tape may be meaningful.
Further, and as noted by the General Counsel, there appears
to be continuity between the portion of the Respondent’s
transcript just before the click and the portion immmediately
following. The Respondent, in its posthearing correspond-
ence, also sought to reopen the hearing, stating that it wished
to complete its redirect examination of Falk and to conduct
a voir dire examination of Bracht respecting the tape. That
request is denied. The record is clear that Falk’s redirect ex-
amination had been completed; the reason for my ruling, de-
nying the motion to reopen the hearing for an inquiry as to
the tape, effectively disposes of the request to reopen the
hearing for a voir dire of Bracht thereon.
The transcript of the tape discloses the following. Falk
asked Bracht about a complaint he just received from a secu-
rity officer that Bracht and his partner, Nelson Torres, had
menaced that officer. Falk told Bracht that he was concerned
because he ‘‘had one guy shot in the last few weeks.’’ He
told Bracht that he did not like guys fooling around with
guns. Bracht said that all he did was touch it and was just
fooling around. Falk said that the officer had reported that
Bracht asked him if he was wired, that Bracht made him take
out his walkman, that Bracht put him in a ‘‘V’’ position (to
search him) while holding a gun. Bracht said that that was
‘‘not true.’’ Falk then said that he had met with other people
in the Company and the decision was to terminate Bracht.
He also said to Bracht then that he is terminating him based
on the report he received, ‘‘violations of firearms rules and
regulations and the fact that (Bracht) menaced one of (the
Respondent’s) employees in public.’’ Bracht asked to be
given a copy of the report; Falk said he would get a copy
for him.
The incident referred to in the discussion between Bracht
and Falk took place in the Borough of the Bronx in New
York City on January 11. Torres and Bracht had stopped
their armored truck to deliver money to a bank when Angel
Lopez, an off-duty security officer, approached them. Lopez
did not testify.
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784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nelson Torres testified that, a few days after the January
11 incident, one of the Respondent’s dispatchers, surnamed
Beck incident and he then told Beck what had happened.
Torres told Bracht of his discussion with Beck. Bracht testi-
fied that, on January 16, he filled out a document entitled
‘‘Unusual Incident Report’’ which set forth the cir-
cumstances of the meeting with Lopez five days earlier and
that, on the evening of January 16, he left it on the desk of
the Respondent’s assistant operations manager, Joseph
DeVittorio. The Respondent argues that Bracht fabricated
this report for purposes of the hearing before me, noting that
Bracht did not bring such a report to a hearing which had
been held before the New York State Unemployment Board.
In its brief, the Respondent contends that Bracht
acknowleged, in his testimony in the instant case, that he had
not prepared such a report as of the date of the Unemploy-
ment Board hearing. The transcript does not support that
contention.
DeVittorio testified that, prior to the hearing in this case,
he had never seen Bracht’s January 16 Unusual Incident Re-
port. He related also, however, that it was in early March
that Angel Lopez told him about the January 11 incident and
that he told Lopez then that he should not have walked up
to the vehicle guarded by Bracht and Torres as it was pos-
sible that that they felt threatened by his approach. That con-
cern would appear to be warranted for, in November 1994,
an off-duty guard walked up to a guard on duty and shot
him. In any event, DeVittorio’s account did not suggest that
he considered Bracht at fault for having accosted Lopez on
January 11.
The Respondent placed in evidence a ruling by the New
York State Unemployment Insurance Appeal Board that de-
nied Bracht benefits based on his conduct on January 11.
That ruling is not dispositive of the issue before me but may
be considered with the record as a whole. I find that it has
no material impact respecting the issue of discrimination be-
fore me.
I do not credit Falk’s testimony that he had not known of
Bracht’s support of the Union when he discharged him on
April 6. As found above, he had interrogated and threatened
Bracht on Feburary 17 about the Union. It is apparent, from
the nature of Falk’s remarks then that he was aware that
Bracht supported the Union. I also do not credit Falk’s ac-
count that he learned on April 6 of the January 11 incident.
I credit Bracht’s account that he left a report of that incident
with DeVittorio, Falk’s assistant, on January 16. I credit
Torres’ testimony that, in January, a dispatcher and thus a
supervisor as determined in the representation case referred
to above, had asked him about that incident. Certainly, the
Respondent is chargeable with knowledge then of the Janu-
ary 11 incident. In any event, DeVittorio’s own account dis-
closes that he was aware of that incident a month before
Bracht’s discharge. The reason Falk gave for terminating
Bracht’s employment was convoluted and confused. At one
point, his account indicated that he and others had earlier
discussed and decided to discharge Bracht. At another point
in his account, he testified that he decided to terminate
Bracht’s employment when Bracht told him that he had put
his hand on his gun. The reasons he proffered also appears
to be at variance with the substance of DeVittorio’s testi-
mony who viewed Lopez at the one who was at fault on Jan-
uary 11 for having approached the armored vehicle.
The credited evidence discloses that Bracht actively sup-
ported the Union and that the Respondent knew this. It had
unlawfully interrogated and threatened him to discourage him
from supporting the Union. Falk’s testimony as to his rea-
sons for discharging Bracht was confused and appeared to
grope for a basis, any basis other than a discriminatory one,
for support. He indicated that the principal basis was
Bracht’s involvement in the January 11 incident. Yet, he
knew of that incident long before April 6 but attempted to
conceal that fact by telling Bracht on April 6 that he had
learned of it just that day. He referred to Bracht’s having
been late but, for 2 years prior to the February 17 coercive
interview Bracht had with Falk, Bracht’s record was clear.
Falk testified that Bracht was on very thin ice; the evidence
thereon, however, is that the only warning Falk gave to him
that his job was in jeopardy was the implied threat made on
February to discourage him from continuing to support the
Union. The credited evidence discloses that Bracht was dis-
charged for having supported the Union and there is no pro-
bative evidence that he would have, in any event, been dis-
charged for a nondiscriminatory reason. Under the guidelines
set out in Wright Line, 251 NLRB 1083 (1980), I find that
the Respondent discharged Bracht from its employ on April
6 in order to discourage its employees from supporting the
Union. See T & J Trucking, supra.
G. Alleged Interference with Distribution of Union
Authorization Cards in 1996
An amendment to the complaint alleges that, in February
1996, the Respondent by various named supervisors con-
fiscated authorization cards being distributed by the Union to
the Respondent’s guards that it engaged in surveillance of
their union activities. In support thereof the General Counsel
offered the testimony of Gonzalez and of William Cordero,
a former supervisor. Gonzalez impressed me as a credible
witness; Cordero’s account, however, gave me pause. He had
been discharged for cause; more significantly, more than
once he testified forcefully to certain matters, thus indicating
that he had first hand knowledge of those matters, only to
admit later than he based his accounts in those areas on sur-
mise.
Gonzalez testified credibly that, on a Friday early in 1996,
he, Bracht and the Union’s president stationed themselves
outside the building in which the Respondent has its offices
and that they sought to hand out union authorization cards
to guards as they arrived en masse to collect their paychecks.
He observed that, when the Union’s president gave a guard
a card and a flyer, several supervisors surrounded that guard
and led him into the building. He, himself, was followed by
two supervisors. Hand and eye gestures made to him by
some of the guards indicated that they were then being
watched by the Respondent’s supervisors.
The Respondent contends, and offerred testimony to the
effect, that safety and other concerns motivated it to assign
supervisors to monitor guard movements about its building.
The credited evidence noted above points instead to a dif-
ferent concern.
I find, based on Gonzalez’ account, that the Respondent
unlawfully impeded the Union in its attempt to distribute its
literature. Cf. Farm Fresh, Inc., 305 NLRB 887, 888 (1991).
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785EPIC SECURITY CORP.
H. Alleged Effort to Dissuade a Witness from Testifying
The complaint, as amended, alleges that the Respondent
interfered with Board processes by attempting to dissuade
one of the General Counsel’s witnesses from testifying in
this proceeding. The witness was William Cordero.
Cordero had been a supervisor employed by the Respond-
ent until he resigned on March 26, 1996, upon the Respond-
ent’s learning that he had been responsible for a defalcation.
Cordero testified that, on April 19, 1996, Falk called him,
asked him if the ‘‘Labor Board’’ had subpoened him to tes-
tify in this case, told him that he did not have to testify and
that he could tell the Labor Board to stop bothering him.
Falk denied having called Cordero. He testified that one
of the Respondent’s supervisors, Mike Jimenez, told him that
Cordero had called him and said he had been subpoened to
testify and wanted to know what to do. Falk testified that he
told Jiminez to tell Cordero that, as he was no longer in the
Respondent’s employ, he can do as he wishes. Jiminez
testifed for the Respondent but did not refer to any such con-
versation with Cordero, or with Falk.
While I had reservations as to Cordero’s credibility in an-
other area, discussed above, his account of his discussion
with Falk is more persuasive than Falk’s.
Falk’s unsolicited ‘‘advice’’ to Cordero that he need not
testify in the hearing before me contained no overt threat of
reprisal. His letting Cordero speculate, however, as to what
may happen if he refused the advice, i.e., whether the Re-
spondent would prosecute him for the defalcation, whether it
would blackball him with companies interested in hiring him,
or otherwise, could well have been more effective than any
express warning.
The Board has observed that ‘‘clearly inherent in the em-
ployees’ statutory rights is the right to seek their vindication
in Board proceedings . . . (and that) rank-and-file employees
are entitled to vindicate these rights through the testimony of
supervisors who have knowledge of the facts, without the su-
pervisors risking discharge or other penalty for giving testi-
mony under the Act adverse to their employer.’’ Better Mon-
key Grip Co., 115 NLRB 1170 (1956). See also Parker-Robb
Chevrolet, 262 NLRB 402 (1982). I find that the Respond-
ent, by Falk, interfered with employee rights under Section
7 of the Act by having impliedly warned Cordero that he
may well face unspecified reprisals if he gave testimony
against it in this case as to matters learned while having
served as a supervisor for the Respondent.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2 (5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act in interfer-
ing with, restraining and coercing its employees in the exer-
cise of their rights under Section 7 of the Act by having:
(a) Coercively interrogated them as to their support for the
Union.
(b) Threatened them with discharge if they continued to
support the Union.
(c) Created the impression among them that their activities
on behalf of the Union were being kept under surveillance.
(d) Directed them not to discuss the Union among them-
selves.
(e) Posted a notice which encouraged its employees to in-
form it of the identity of employees who solicit the signing
of union authorization cards.
(f) Impeded the distribution of union authorization cards to
its employees.
(g) Attempted to dissuade a witness from testifying in this
case.
(h) Engaged in the conduct set forth in paragraph below.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act in discrimi-
nating against its employees with respect to their terms and
conditions of employment in order to discourage them from
joining or supporting the Union by having:
(a) Issued a warning, dated February 17, 1995, to Nestor
Gonzalez.
(b) Discharged Louis Bracht on April 6, 1995.
5. The unfair labor practices described above in paragraphs
3 and 4 affect commerce within the meaning of Section 2
(6) and (7) of the Act.
6. The Respondent has not engaged in any of the other un-
fair labor practices alleged in the consolidate complaint, as
amended, in this case.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Louis
Bracht, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). In reinstating him the Respondent must assist
him in obtaining restoration of his license to carry a weapon
as a requirement for employing him as a cash team security
officer.
[Recommended Order omitted from publication.]
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