G4S Secure Solutions (USA) Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 92 (N.L.R.B. 2016)

364 NLRB No. 92
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
G4S Secure Solutions (USA) Inc. and International
Union, Security, Police and Fire Professionals of
America (SPFPA). Case 28–CA–023380
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On March 29, 2012, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions, a supporting brief, a reply brief, and an an-
swering brief to the Acting General Counsel’s cross-ex-
ceptions. The Acting General Counsel filed cross-excep-
tions, a supporting brief, a reply brief, and an answering
brief to the Respondent’s exceptions.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings,1 and conclusions in part, to reverse them in part, and
to adopt the recommended Order as modified and set forth
in full below.2

1 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In the absence of exceptions, we adopt the judge’s finding that the
Respondent did not violate Sec. 8(a)(3) and (1) by transferring Danny
Rice. Also in the absence of exceptions, we adopt the judge’s findings
that the Respondent did not violate Sec. 8(a)(1) by allegedly: creating the
impression of surveillance when supervisor Clemons told employees not
to talk about the Union at work; interrogating employees about Rice’s
union activity; creating the impression that employees other than Rice
were under investigation; and maintaining and promulgating a rule pro-
hibiting employees from discussing discipline.
2 We shall modify the judge’s recommended Order in accordance with
our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
and to conform to the Board’s standard remedial language.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we shall also order the Respondent to compensate
affected employees for their search-for-work and interim employment
expenses regardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be calculated
separately from taxable net backpay, with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). _For the
reasons stated in his separate opinion in King Soopers, supra, slip op. at
9–16, our dissenting colleague would adhere to the Board’s former ap-
proach, treating search-for-work and interim employment expenses as an
offset against interim earnings.
We shall substitute a new notice to conform to the Order as modified
and in accordance with our decision in Durham School Services, 360
NLRB No. 85 (2014).
3 In evaluating the handbook rule allegations, we apply the Board’s
well-established standard that an employer violates Sec. 8(a)(1) of the
I. INTRODUCTION
The Respondent, G4S Secure Solutions, provides secu-
rity services to clients throughout the United States. G4S
contracts with Valley Metro Rail, Inc. (“Metro”) to pro-
vide security services along a portion of the Metro Light
Rail, a mass transit system serving the greater Phoenix,
Arizona area. The International Union, Security, Police
and Fire Professionals of America filed a representation
petition on January 31, 2011, seeking to represent a unit
of G4S security officers assigned to work on the East Val-
ley Metro Rail, a portion of the Metro Light Rail that runs
between Tempe and Mesa, Arizona. The election, sched-
uled for March 1, 2011, was postponed indefinitely pend-
ing the resolution of the charges underlying this case.
The case involves allegations that the Respondent main-
tained several unlawfully overbroad work rules,3 disci-
plined and discharged employees because of their pro-
tected concerted activity or union activity, and made cer-
tain other allegedly coercive statements to employees. We
agree with the judge, for the reasons stated in her decision,
that the Respondent violated Section 8(a)(1) by: (1) main-
taining a handbook rule prohibiting employees from wear-
ing “insignias, emblems, buttons, or items other than those
issued by the company” without permission;4 (2) main-
taining a confidentiality policy that prohibited employees
Act by maintaining a work rule that would reasonably tend to chill em-
ployees in the exercise of their Sec. 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999). If the
rule explicitly restricts Sec. 7 rights, it is unlawful. Lutheran Heritage
Village-Livonia, 343 NLRB 646, 646 (2004). If it does not, the violation
is dependent upon a showing of one of the following: (1) employees
would reasonably construe the language to prohibit Sec.7 activity; (2) the
rule was promulgated in response to union activity; or (3) the rule has
been applied to restrict the exercise of Sec. 7 rights. Id. at 647. The
dissent would overrule this court-approved standard. We disagree, for
the reasons set forth fully in William Beaumont Hospital, 363 NLRB No.
162, slip op. at 4–6 (2016), and Schwan’s Home Service, 364 NLRB No.
20, slip op. at 3 (2016).
4 The Board’s standard for evaluating an employer’s prohibition on
wearing union buttons and other insignia is long standing and correctly
set forth by the judge. See Republic Aviation Corp. v. NLRB, 324 U.S.
793, 801–803 (1945); Boch Honda, 362 NLRB No. 83, slip op. at 2–3
(2015), enfd. ___ F.3d ___ (1st Cir. June 17, 2016). We agree with the
judge that the rule here is overly broad and note that it applies to all se-
curity guards, not only those who interface with the public. The dissent
speculates that union or other buttons or insignia could interfere with the
image the Respondent hopes to convey to its clients and the public. The
Respondent and the dissent further argue that the mere possibility that a
guard could come in contact with the public is sufficient to justify a total
ban. But the burden here is on the Respondent to show that special cir-
cumstances exist to justify its broad rule. See W San Diego, 348 NLRB
372, 373 (2006). “[T]he ‘special circumstances’ exception is narrow,”
and “a rule which curtails an employee’s right to wear union insignia at
work is presumptively invalid[] . . . .” E & L Transport Co., 331 NLRB
640, 640 fn. 3 (2000) (emphasis in original). The Board considers the
appearance and message of the insignia in determining whether it rea-
sonably would interfere with the public image the respondent desires to
convey. United Parcel Service, 312 NLRB 596, 597 (1993), enf. denied
41 F.3d 1068 (6th Cir. 1994). The Board has consistently held that “the
mere possibility” that the employees may come into contact with a cus-
tomer does not outweigh the employees’ Sec. 7 right to wear insignia.
Escanaba Paper Co., 314 NLRB 732, 733 fns. 5 and 7 (1994), enfd. sub
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
from discussing “wages and salary information”; (3) in-
structing employee Donald Wickham, under threat of dis-
cipline, not to talk to Lieutenant Danny Rice, a supervisor
who was suspended and demoted for his union activity;5
(4) creating an impression of surveillance when supervisor
Jason Armstrong told employee Sean Nagler that he knew
that Nagler had talked to other employees about the Un-
ion; and (5) threatening employee Asucena Banuelos that
at the expiration of the Respondent’s contract with Metro,
the Respondent would not rehire anyone who was in favor
of the Union. We also adopt the judge’s findings that the
Respondent violated Section 8(a)(3) and (1) by discharg-
ing Wickham, but did not violate Section 8(a)(1) by prom-
ulgating or reinforcing an overbroad confidentiality rule
during Wickham’s unemployment compensation hear-
ing.6
For the reasons stated by the judge and for the additional
reasons explained below, we find that the Respondent vi-
olated Section 8(a)(1) by: (1) instructing and threatening
employees not to talk about the Union at work; (2) disci-
plining employee Debra Sterling because of her protected
concerted activity; (3) maintaining a confidentiality rule
that prohibits employees from “giv[ing] or mak[ing] pub-
lic statements about the activities or policies of the com-
pany” without written permission; and (4) maintaining a
social networking policy that prohibits employees from
commenting on “work-related matters without express
permission of the Legal Department.”
We reverse the judge’s findings as to two of the Re-
spondent’s work rules. Specifically, as explained below,
we find that the Respondent did not violate Section 8(a)(1)
by maintaining the portion of its confidentiality rule that
restricts the use or disclosure of “G4S or client infor-
mation.” We find, however, that the Respondent violated
Section 8(a)(1) by prohibiting employees from posting on
any social networking site “photographs, images, and vid-
eos of G4S employees in uniform or at a G4S place of
work.” In doing so, we find that a federal contractor’s
posting of a required notice of employee rights under the
Act by itself is insufficient to clarify an otherwise unlaw-
ful ambiguity in a challenged work rule.

nom. NLRB v. Mead Corp., 73 F.3d 74 (6th Cir. 1996). Here, the Re-
spondent has provided no evidence that certain of its employees ever in-
teract with the public.
We further agree with the judge that the rule is overly broad because
it reasonably would be read to apply to guards whether they are on or off
duty. The dissent construes the rule to apply only to on-duty guards, in
part because, in his view, guards would not wear their uniforms off duty
except during their commute. There is no evidence in the record that
employees dress at the job site, so employees’ commutes could include
attending to errands or engaging in off-duty protected activity, such as
rallies or meetings before their shift, while in uniform.
Finally, the dissent’s statement that our decision prevents the Re-
spondent from “imposing any prohibition” on security officers wearing
buttons about “dogs, kittens, gelatin, or toast” is utterly false. The Re-
spondent is free to maintain a professional image rule that does not in-
terfere with employees’ Sec. 7 rights.
Finally, contrary to the judge, we find that the Respond-
ent did not violate Section 8(a)(1) by telling an employee
that a supervisor had an issue with her because she “called
off sick” on three occasions when she was scheduled to
work overtime.
DISCUSSION
1. No-talking Rule and Threat
In November 2010, Lieutenant D.J. Clemons, a shift su-
pervisor, told a group of employees that the Union should
not be discussed at work. The following week, Clemons
similarly told employee Carol Taresh to be careful talking
about the Union because it should not be discussed at
work. The Respondent’s handbook states that security of-
ficers must “[e]ngage in no unnecessary conversations.”
The judge found that Clemons’ conduct constituted an
unlawful application of the Respondent’s handbook rule
and that Clemons’ statement to Taresh constituted an un-
lawful threat. We agree with the judge that, in both in-
stances, Clemons’ statements were unlawful, but we find
that the statements did not constitute an application of the
Respondent’s handbook rule.
The complaint contained two allegations relevant to this
issue. The first alleged that the Respondent violated the
Act by maintaining its “no unnecessary conversations”
rule. The second alleged that Clemons “orally promul-
gated and has since maintained a discriminatory rule pro-
hibiting its employees from speaking about the Union.”
With respect to the first allegation, the credited testi-
mony does not establish that Clemons mentioned the rule
to employees or otherwise indicated that the handbook
prohibited discussion of the Union at work. Thus, we do
not adopt the judge’s finding that the instruction to em-
ployees was an unlawful application of the handbook rule.
As to the second allegation, we agree that Clemons
promulgated a discriminatory no-talking rule in violation
of Section 8(a)(1). The Board has recognized that “an em-
ployer may forbid employees from talking about a union
during periods when the employees are supposed to be ac-
tively working, if that prohibition also extends to other
subjects not associated or connected with the employees’
5 To the extent the judge implies that the violation did not occur until
after Rice lost his supervisory position, and thus became a statutory em-
ployee, we disagree. Employees are engaged in statutorily protected ac-
tivity when they talk to a supervisor about unionizing, as well as when
they talk to fellow employees.
We find it unnecessary to pass on the judge’s finding that the Re-
spondent also violated the Act by issuing the same instruction to other
employees without threatening discipline. This additional finding would
not materially affect the remedy.
6 In finding that Respondent violated Sec. 8(a)(3) by terminating
Wickham, we agree with the judge that the Respondent’s stated reason
for the termination was a pretext. We need not, however, rely on the
finding of pretext to infer animus because the Respondent’s multiple
8(a)(1) violations establish animus. Farm Fresh, Inc., 301 NLRB 907,
907 (1991). Moreover, in adopting the judge’s finding of pretext, we do
not rely on her discussion of the adequacy of the Respondent’s investi-
gation.
G4S SECURE SOLUTIONS (USA) INC. 3
work tasks. However, an employer violates the Act when
employees are forbidden to discuss unionization, but are
free to discuss other subjects unrelated to work . . . .” Jen-
sen Enterprises, Inc., 339 NLRB 877, 878 (2003); accord
Scripps Memorial Hospital Encinitas, 347 NLRB 52, 52
(2006). Further, in considering whether communications
from an employer to its employees violate the Act, “the
Board applies the objective standard of whether the re-
mark tends to interfere with the free exercise of employee
rights. The Board does not consider either the motivation
behind the remark or its actual effect.” Miller Electric
Pump & Plumbing, 334 NLRB 824, 824 (2001).
Applying those principles here, we find that the Re-
spondent violated Section 8(a)(1) of the Act. The record
establishes that, notwithstanding the rule prohibiting un-
necessary conversations, the Respondent routinely al-
lowed its employees to engage in social discussions during
working time. Therefore, when Clemons announced to a
group of employees that they should not talk about the Un-
ion at work, his statement constituted a discriminatory
prohibition on discussing the Union.
We also agree that Clemons unlawfully threatened
Taresh when he told her to “be careful” talking about the
Union. The Respondent argues that both this and
Clemons’ earlier statement to employees are privileged
under Paintsville Hospital Co., 278 NLRB 724 (1986). In
that case, two supervisors engaged in conduct that would
ordinarily violate Section 8(a)(1). The Board, however,
dismissed the allegations because the supervisors were
prounion, sought to protect employees from retaliation,
and would have appeared to be acting not in behalf of
management, but “in their own interest and in accordance
with their own [prounion] sympathies, which were plainly
contrary to those of management.” Id. at 725. Here, the
facts do not establish that Clemons was openly prounion.
The record contains testimony that Clemons thought there
was “possibly a need” for the Union, but there is also tes-
timony that he provided a detailed report of supervisor
Rice’s union activity to the general manager. Unlike
Paintsville Hospital Co., there is no “extensive evidence”
that Clemons was acting based on his prounion sympa-
thies and in his own interest. Id. at 725 fn. 9. We find the
facts presented here are more analogous to those in Har-
mony Corp.,7 and Greenwich Air Services,8 two cases in
which the Board found statements made by arguably un-
ion-friendly supervisors to be unlawful where the supervi-
sors at issue were not openly supportive of the union and

7 301 NLRB 578, 579 (1991).
8 323 NLRB 1162, 1162–1163 (1997).
9 The dissent argues that Sterling’s only concerted activity was her
collaboration with employee Asucena Banuelos on notes for a letter to
the EEOC. Even if the issue of the extent of Sterling’s concerted activity
were before the Board on exceptions, which it is not, we would disagree
that her concerted activity was so limited. The judge found that Sterling
engaged in the following concerted activity: (1) discussing her com-
plaints about Project Manager Major Robert Thario with Banuelos, in-
cluding their collaboration on notes for a letter to the EEOC; (2) speaking
where their statements were otherwise coercive when con-
sidered under an objective standard. As a result, we adopt
the judge’s finding that Clemons’ statements to employees
violated Section 8(a)(1) on the grounds discussed above.
2. Discipline of Debra Sterling
The judge found that the Respondent violated Section
8(a)(1) by disciplining employee Debra Sterling for pur-
suing a sexual harassment complaint. In reaching that
conclusion, the judge found that Sterling was engaged in
protected concerted activity and that the Respondent had
knowledge of the activity. The Respondent does not ex-
cept to those findings, and in fact concedes in its brief that
Human Resources Director Janelle Kercher was aware of
Sterling’s protected concerted activity.9 The Respondent,
however, argues that supervisor Jason Armstrong, who al-
legedly made the decision to discipline Sterling and who
was working at another location at the time of Sterling’s
complaint, was not aware of it. 10 The Respondent also
argues that, in light of the 5 months between the two
events, the judge erred in finding a causal connection be-
tween Sterling’s protected activity and her discipline, and
that, to the contrary, the Respondent has established that
the discipline was motivated by Sterling’s failure to report
for an overtime shift.
We reject the Respondent’s arguments. Regarding the
Respondent’s knowledge, it is well established that the
Board imputes a manager’s or supervisor’s knowledge of
an employee’s protected concerted activities to the deci-
sionmaker, unless the employer affirmatively establishes
a basis for negating such imputation. See, e.g., Vision of
Elk River, Inc. 359 NLRB No. 5, slip op. at 4 (2012), re-
affirmed and incorporated by reference in 361 NLRB No.
155 (2014). Furthermore, in light of the evidence that Op-
erations Manager Ed Martini—who was Armstrong’s su-
perior and who clearly knew about Sterling’s protected
conduct—told Armstrong that he wanted Sterling fired, it
is not at all clear that Armstrong was, in fact, responsible
for the decision to discipline Sterling. But even assuming
that Armstrong was the decisionmaker, the evidence pre-
sented by the Respondent is insufficient to establish an af-
firmative basis for declining to impute knowledge.
We also reject the contention of the Respondent and the
dissent that the passage of 5 months between Sterling’s
complaint and her discipline demonstrates that it did not
act unlawfully. Even assuming that this temporal gap is
significant, we note that the Respondent received a notice
with Kercher and General Manager Larry Pablo about her concerns; (3)
filing a hotline complaint; and (4) filing an EEOC charge. The Respond-
ent, on brief, acknowledges these unexcepted-to findings.
10 The dissent argues that management was not aware that the activity
was concerted. As stated above, the Respondent concedes that Kercher
was aware of Sterling’s protected concerted activity. Thus, the only is-
sue before the Board is whether the knowledge was properly imputed to
Armstrong. As explained below, the judge applied settled law in imput-
ing knowledge to Armstrong.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
of Sterling’s right to sue from the EEOC only days before
it disciplined her. Accordingly, we adopt the judge’s find-
ing that the Respondent’s discipline of Sterling violated
Section 8(a)(1).11
3. Confidentiality Rule
The Respondent’s handbook contains a confidentiality
provision, which states:
The protection of confidential information, trade secrets,
and company-specific operating procedures is vital to
the interests and success of G4S Secure Solutions USA.
Additionally, in the line of duty, you may come into con-
tact with our customers’ confidential information.
Employees who improperly use, reveal, copy, disclose
or destroy G4S or client information will be subject to
disciplinary action, up to and including termination of
employment. They may also be subject to legal action
even if they do not actually benefit from the disclosure.
Such information includes any information considered
proprietary by G4S or the client organization.
Do not give interviews or make public statements about
the activities or policies of the company or our client
without written permission from G4S Secure Solutions
USA.
The judge, relying on Flamingo Hilton-Laughlin, 330
NLRB 287 (1999), found the rule unlawful because it pro-
hibits employees from disclosing confidential information
and from giving interviews or making public statements
about the Respondent’s activities or policies without per-
mission. The judge also found the rule unlawful because
it does not define “confidential information” or the “activ-
ities or policies” it references, nor does it affirmatively
state that the rule will not be used to restrict Section 7 ac-
tivity. Although we agree that the third paragraph of the
rule is unlawful, we find that the first two paragraphs are
not.
In our view, there is a critical distinction between the
language here and the rule found unlawful in Flamingo

11 In finding this 8(a)(1) violation we note, however, that the judge’s
statement of the test of discriminatory motivation set forth in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F. 2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983), confuses the General Counsel’s ini-
tial burden of proof with evidentiary elements sufficient to meet that bur-
den. As stated in Fresh & Green’s of Washington, D.C., LLC, 359 NLRB
1314, 1315 (2013), reaffirmed and incorporated by reference 361 NLRB
No. 35 (2014), “[u]nder the Wright Line test, the General Counsel must
first prove, by a preponderance of the evidence, that the employee’s pro-
tected conduct was a motivating factor in the employer’s adverse em-
ployment action. See, e.g., Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 961 (2004). The General Counsel satisfies this burden by showing
that (1) the employee was engaged in protected activity, (2) the employer
had knowledge of the protected activity, and (3) the employer bore ani-
mus toward the employee’s protected activity. Id. If the General Coun-
sel meets his initial evidentiary burden, the burden of persuasion ‘shift[s]
Hilton-Laughlin, which prohibited revealing confidential
information regarding fellow employees. Id. at 288, fn. 3.
Here, the rule does not restrict disclosure of employee in-
formation.12 As a result, we find the language of the Re-
spondent’s rule to be more analogous to the rule at issue
in Super K-Mart, 330 NLRB 263, 263–264 (1999). In that
case, the Board found that employees would reasonably
understand a rule stating that “company business and doc-
uments are confidential” as limiting the dissemination of
proprietary information, rather than limiting employees’
ability to discuss wages and working conditions. Id. at
263. Similarly, the rule here is limited to information that
is “considered proprietary by G4S or the client organiza-
tion,” and nothing in the rule suggests that the Respondent
considers employee information “proprietary.” Accord-
ingly, we find that the first two paragraphs of the confi-
dentiality provision do not violate the Act.
Turning to the third paragraph, which prohibits employ-
ees from giving public statements about the activities or
policies of the company without permission, we adopt the
judge’s finding that this paragraph is unlawfully over-
broad. The Respondent argues that in the context of what
precedes that language, employees would reasonably con-
strue the provision to restrict only the discussion of pro-
prietary information in public. We disagree. The prohi-
bition against public statements broadly prohibits employ-
ees from speaking about the “activities or policies” of the
company, not about any particular types of information.
The language used would clearly encompass subjects im-
plicating Section 7 of the Act. For example, the Respond-
ent uses the term “policies” throughout the handbook and
other employee personnel documents to describe rules
concerning employee conduct. Read in that broader con-
text, employees would reasonably understand the prohibi-
tion against public statements about company “policies”
to prohibit discussion of rules concerning employee con-
duct—terms and conditions of employment—without
management’s advance approval. See DirecTV U.S. Di-
recTV Holdings, supra, 359 NLRB at 347–348 (finding
unlawful rule that prohibited employees from contacting
to the employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.’ Wright Line, 251
NLRB at 1089.”
12 The rule is therefore also distinguishable from other confidentiality
rules that we have found unlawful. See, e.g., Rio All-Suites Hotel and
Casino, 362 NLRB No 190, slip op. at 2 (2015) (confidentiality provision
prohibited employees from sharing “any information about the Company
which has not been shared by the Company with the general public.”);
DirecTV U.S. DirecTV Holdings, 359 NLRB 545, 546–547 (2013) reaf-
firmed and incorporated by reference 362 NLRB No. 48 (2015) (confi-
dentiality provision instructed employees to “[n]ever discuss details
about your job, company business or work projects with anyone outside
the company” and to “[n]ever give out information about customers or
DIRECTV employees”); Flex Frac Logistics, 358 NLRB 1131, 1131
(2012), enfd. 746 F.3d 205 (5th Cir. 2014) (confidentiality provision pro-
hibited employees from engaging in “[d]isclosure” of “personnel infor-
mation and documents” to persons “outside the organization”).
G4S SECURE SOLUTIONS (USA) INC. 5
the media).13 We therefore find that the maintenance of
paragraph three of the rule violates Section 8(a)(1).
4. Social Media Policy
Since November 22, 2010, the Respondent has main-
tained a written social networking policy that includes the
following paragraphs:
Photographs, images, and videos of G4S employees in
uniform (whether yourself or a colleague) or at a G4S
place of work, must not be placed on any social network-
ing site, unless express permission has been given by
G4S Secure Solutions (USA) Inc.
Do not comment on work-related legal matters without
express permission of the Legal Department.
For the reasons stated by the judge and the additional
reasons below concerning the Respondent’s disclaimer,
we agree that the second paragraph is overbroad and there-
fore violates Section 8(a)(1). Contrary to the judge, how-
ever, we also find that the first paragraph is impermissibly
overbroad.
In finding that the first paragraph did not violate the Act,
the judge relied on Flagstaff Medical Center,14 in which
the Board found that a prohibition on “the use of cameras
for recording images of patients and/or hospital equip-
ment, property, or facilities” did not violate the Act. First,
the judge reasoned that the rule found lawful in Flagstaff
was broader than the Respondent’s rule, which is limited
to the posting on social media sites of pictures of employ-
ees in uniform or at a place of work but does not prohibit
the taking of such pictures. Second, the judge found that
the Respondent, although not a hospital, provides emer-
gency medical technician (EMT) services for some cli-
ents, thereby implicating the same patient privacy con-
cerns as in Flagstaff. The judge noted that the Respond-
ent’s other client services are varied, but she presumed
that these clients have their own privacy and legal con-
cerns.
Under Lutheran Heritage Village-Livonia, 343 NLRB
646, 647 (2004), an employer violates Section 8(a)(1)
when it maintains a work rule that employees would rea-
sonably construe to prohibit Section 7 activity. Photog-
raphy, including the posting of photographs on social me-
dia, is protected by Section 7 if employees are acting in

13 For the reasons set forth below in our discussion of the Respond-
ent’s social media policy, we disagree with our dissenting colleague that
the Respondent’s obligation to post the Department of Labor notice alone
ameliorates the adverse effect of the maintenance of this overbroad rule.
14 357 NLRB 659, 662–663 (2011), enf. granted in part, denied in part
on other grounds 715 F.3d 928 (D.C. Cir. 2013).
15 Chairman Pearce dissented in relevant part from the majority’s find-
ing that the rule in Flagstaff was lawful. 357 NLRB at 670–671. How-
ever, for the reasons set forth here, he agrees with his colleagues that the
Respondent has not asserted a privacy interest comparable to the patient
privacy interest in Flagstaff and that the rule at issue is unlawful.
concert for their mutual aid and protection and no overrid-
ing employer interest is present. Whole Foods, 363 NLRB
No. 87, slip op. at 3 (2015); Rio All-Suites Hotel and Ca-
sino, 362 NLRB No. 190, slip op. at 4 (2015). See also
Bettie Page Clothing, 359 NLRB 777 (2013) reaffirmed
and incorporated by reference 361 NLRB No. 79 (2014)
(posting on social media site constitutes protected con-
certed activity); White Oak Manor, 353 NLRB 795, 795
fn. 2 (2009) (photography was part of the res gestae of em-
ployee’s protected concerted activity), reaffirmed and in-
corporated by reference at 355 NLRB 1280 (2010) enfd.
452 Fed. Appx 374 (4th Cir. 2011). In considering the
legality of a rule prohibiting photography in Flagstaff, the
Board emphasized the “weighty” privacy interests of the
patients and the hospital’s “significant interest in prevent-
ing the wrongful disclosure of individually identifiable
health information,” as required by Federal law. 357
NLRB at 663. The Board concluded that the rule in Flag-
staff was lawful, finding that employees would understand
the rule as a “legitimate means of protecting the privacy
of patients and their hospital surroundings.” Id.15
In analyzing the social media policy at issue here, the
judge presumed that all of the Respondent’s clients had
privacy interests similar to those articulated in Flagstaff.
The Respondent’s security employees perform a wide
range of services for a diverse clientele of businesses and
government agencies nationwide. Even assuming, ar-
guendo, that the federally mandated concern for patient
privacy applies to those employees who perform EMT ser-
vices for an unspecified number of clients, there is no ba-
sis in the record and no identifiable government policy to
justify the judge’s presumption that all other clients have
common privacy concerns of comparable weight. Such a
presumption cannot simply be founded on the fact that the
Respondent provides “security” services. Moreover, the
Respondent’s assertion that the policy is designed to pro-
tect customer privacy is undercut by the language of the
rule itself, which solely prohibits posting images of its
own employees in uniform or at a workplace, but says
nothing about the posting of images of the clients’ custom-
ers or the clients’ workplace in isolation from the Re-
spondent’s employees. In the absence of any basis for
finding that the rule is tailored to protect a legitimate pri-
vacy concern of similar weight to the patient privacy con-
cern in Flagstaff, we find that employees would reasona-
bly interpret the policy to restrict Section 7 activity.16
16 The dissent concedes that the rule could be construed to interfere
with Sec. 7 rights. Nevertheless, the dissent accuses us of preventing the
Respondent from creating a rule that would prohibit employees from
sharing training exercises or other security-related activities, and that we
thereby place at risk the lives of the Respondent’s security officers and
client personnel. The accusation is as far-fetched as it sounds. Our find-
ing simply prohibits the Respondent from maintaining an overly broad
rule that would be construed to prohibit Sec. 7 activity. Nothing in our
decision prevents the Respondent from promulgating a more narrowly
tailored rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
The Respondent and the dissent also argue that employ-
ees would not reasonably construe any provision in the so-
cial networking policy to prohibit Section 7 activity be-
cause the policy includes an introductory bolded dis-
claimer stating that “[t]his policy will not be construed or
applied in a manner that interferes with employees’ rights
under federal law.” The Respondent argues that employ-
ees would understand that “rights under federal law” in-
clude Section 7 protections because, as a federal contrac-
tor, it is required by the U.S. Department of Labor (DOL)
to post a notice informing employees of their rights under
the Act.17 See 75 FR 28368, 29 CFR Part 471 (2010). We
agree that an employer’s express notice to employees of
their Section 7 rights may, in certain circumstances, clar-
ify the scope of an otherwise ambiguous and unlawful
rule. But the social media policy’s vague reference to
“rights under federal law” is insufficient to inform em-
ployees that the policy does not prohibit conduct protected
by Section 7. See First Transit, 360 NLRB No. 72, slip
op. at 3, 4 (2014).
8(a)(1) Threat of Unspecified Reprisal
The judge found that supervisor Jason Armstrong un-
lawfully threatened employee Debra Sterling by telling
her that he had “an issue” with her because each of the
three times she used sick leave during the previous 1-1/2
years, she had been scheduled to work overtime. The day
before, Armstrong made the statement Sterling had left
work early because she was sick. The judge found that,
although the comment did not “inherently” threaten Ster-
ling’s exercise of her Section 7 rights, the timing of the
comment—soon after the Respondent disciplined her for
protected concerted activity and assertedly the day after
the union election—would cause a reasonable employee
to view the statement as threatening. We disagree. First,
the judge erred about the timing.18 Second, it is significant
that Armstrong’s statement does not reference the Union,
the election, or Sterling’s protected concerted activity.
Third, the statement itself does not include any threat of
reprisal. Under the circumstances, we find that the state-
ment is not unlawful and we dismiss this complaint alle-
gation.
AMENDED REMEDY
We amend the remedy as stated in footnote 2 above.
ORDER
The National Labor Relations Board orders that the Re-
spondent, G4S Secure Solutions (USA) Inc., Phoenix, Ar-
izona, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Maintaining in employee handbooks or policy state-
ments rules that prohibit employees from (i) wearing “in-
signia, emblems, buttons, or items other than those issued

17 The record does not clearly establish that the Respondent is a federal
contractor obligated to post the notice. We do not, however, take issue
with the Respondent’s assertion that it posted the notice.
by the company” without permission; (ii) discussing
“wages and salary information”; (iii) commenting on
“work related matters without express permission of the
Legal Department”; (iv) “giv[ing] or mak[ing] public
statements about the activities or policies of the company”
without written permission; and (v) placing on any social
networking site without express permission any “photo-
graphs, images, and videos of G4S employees in uniform
(whether yourself or a colleague) or at a G4S place of
work.”
(b) Instructing employees, under threat of job loss, not
to talk with employees or supervisors about disciplinary
matters.
(c) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(d) Threatening employees with job loss for engaging in
union or other protected concerted activity.
(e) Disciplining employees for engaging in union or
other protected concerted activity.
(f) Discharging employees for engaging in union or
other protected concerted activity.
(g) Prohibiting employees from talking about the Union
while allowing other nonwork related discussions by em-
ployees.
(h) Threatening employees with unspecified reprisal for
talking about the Union at work.
(i) In any like or related manner interfering with, re-
straining, 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 ef-
fectuate the policies of the Act.
(a) Rescind the unlawful rules that prohibit employees
from (i) wearing “insignia, emblems, buttons, or items
other than those issued by the company” without permis-
sion; (ii) discussing “wages and salary information”; (iii)
commenting on “work related matters without express
permission of the Legal Department”; (iv) “giv[ing] or
mak[ing] public statements about the activities or policies
of the company” without written permission; and (v) plac-
ing on any social networking site without express permis-
sion any “photographs, images, and videos of G4S em-
ployees in uniform (whether yourself or a colleague) or at
a G4S place of work.”
(b) Furnish all employees nationwide with inserts for
the current employee handbook and Social Networking
Policy that (1) advise that the unlawful rules have been
rescinded, or (2) provide the language of lawful rules; or
publish and distribute to all employees nationwide a re-
vised handbook and Social Networking Policy that (1) do
not contain the unlawful rules, or (2) provide the language
of lawful rules.
18 The Board had postponed the election indefinitely before the state-
ment was made.
G4S SECURE SOLUTIONS (USA) INC. 7
(c) Within 14 days from the date of this Order, offer
Donald Wickham full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Donald Wickham whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the judge’s
remedy as amended in this decision, plus reasonable
search-for-work and interim employment expenses.
(e) Compensate Donald Wickham for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline and
discharge of Donald Wickham and within 3 days thereaf-
ter, notify him in writing that this has been done and that
the unlawful actions will not be used against him in any
way.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline of
Debra Sterling and within 3 days thereafter, notify her in
writing that this has been done and that the unlawful action
will not be used against her in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(i) Within 14 days after service by the Region, post at
all of its facilities in Phoenix, Arizona, copies of the at-
tached notice marked “Appendix A”.19 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any

19 If this Order is enforced by a judgment of the 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.”
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness 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 August 24, 2010.
(j) Within 14 days after service by the Region, post at
all of its facilities nationwide copies of the attached notice
marked “Appendix B”.20 Copies of the notice, on forms
provided by the Regional Director for Region 28, after be-
ing signed by the Respondent’s authorized representative,
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.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. 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
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
August 24, 2010.
(k) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent Employer has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
20 If this Order is enforced by a judgment of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
My colleagues and I reach the same result on many of
the issues in this case, but we do not always agree on the
analysis to be applied. In particular, several issues involve
whether the Respondent violated Section 8(a)(1) of the
National Labor Relations Act (NLRA or Act) by maintain-
ing various work rules, policies and handbook provisions.
To make that determination, the judge and my colleagues
apply prong one of the standard set forth in Lutheran Her-
itage Village-Livonia, 343 NLRB 646 (2004), under
which the Board asks whether employees “would reason-
ably construe the language” of the rule “to prohibit Sec-
tion 7 activity.” Id. at 647.
I do not apply the “reasonably construe” standard. For
the reasons I explained in William Beaumont Hospital,
363 NLRB No. 162, slip op. at 7–24 (2016) (Member
Miscimarra, concurring in part and dissenting in part),
which are summarized below, I believe the Lutheran Her-
itage “reasonably construe” standard should be overruled
by the Board or repudiated by the courts. I also believe
that the Board is required to evaluate an employer’s work-
place rules, policies and handbook provisions by striking
a “proper balance” that takes into account (i) the legitimate
justifications associated with the disputed rules and (ii)
any potential adverse impact on NLRA-protected activ-
ity,1 and that a “facially neutral” policy, rule or handbook
provision—defined as a rule that does not expressly re-
strict Section 7 activity, was not adopted in response to
NLRA-protected activity, and has not been applied to re-
strict NLRA-protected activity—should be declared un-
lawful only if the legitimate justifications an employer
may have for maintaining the rule are outweighed by its
potential adverse impact on Section 7 activity. Applying
this standard, I concur with my colleagues’ findings as to

1 See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33–34 (1967)
(referring to the Board’s “duty to strike the proper balance between . . .
asserted business justifications and the invasion of employee rights in
light of the Act and its policy”). In performing the balancing discussed
in the text, I believe the Board must also take into account other consid-
erations, which may include, depending on the case, reasonable distinc-
tions between types of rules and justifications, evidence regarding the
particular industry or work setting, specific events that may bear on the
disputed rule, and the possibility that the rule may be lawfully maintained
even though application of the rule against NLRA-protected conduct
may be unlawful. See William Beaumont, supra, slip op. at 15, 18–20
(Member Miscimarra, concurring in part and dissenting in part).
2 Lutheran Heritage, 343 NLRB at 647. This standard is sometimes
called Lutheran Heritage “prong one” because, in Lutheran Heritage,
the “reasonably construe” test is enumerated as the first item, or “prong,”
in a three-prong standard for determining whether a challenged policy,
work rule or handbook provision that does not explicitly restrict Sec. 7
activity is nonetheless unlawful. See William Beaumont, supra, slip op.
at 7 fn. 3 (Member Miscimarra, concurring in part and dissenting in part).
3 William Beaumont, supra, slip op. at 8–10, 11–18 (Member Misci-
marra, concurring in part and dissenting in part).
4 The one rule that does expressly restrict Sec. 7 activity was the di-
rective issued by Lieutenant Clemons when he told a group of employees
that the Union should not be discussed at work. In general, no further
several of the rules at issue in this case, and I respectfully
dissent as to others, as explained below.
This case also presents a number of other issues involv-
ing allegations that the Respondent violated Section
8(a)(3) and 8(a)(1) of the Act. These allegations are ad-
dressed following a summary of my rationale in William
Beaumont and discussion of the Respondent’s rules, poli-
cies and handbook provisions.
A. The Board’s Lutheran Heritage “Reasonably Con-
strue” Test Should Be Overruled by the Board or
Repudiated by the Courts
As stated above, the judge and my colleagues apply Lu-
theran Heritage, under which facially neutral employment
policies, work rules and handbook provisions violate
NLRA Section 8(a)(1) if employees would “reasonably
construe the language” of the rule “to prohibit Section 7
activity.”2 For reasons described at length in my partial
dissenting opinion in William Beaumont,3 I believe that
the Lutheran Heritage “reasonably construe” test should
be overruled by the Board or repudiated by the courts. The
“reasonably construe” standard defies common sense and
is contrary to the Act in numerous respects. Although Sec-
tion 8(a)(1) makes it unlawful for an employer to “inter-
fere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,” the disputed work rules
in the instant case (with one exception) do not expressly
restrict Section 7 activity,4 and none of the rules was
adopted in response to NLRA-protected activity or ap-
plied to restrict NLRA-protected activity.5 The “reasona-
bly construe” standard entails a single-minded considera-
tion of NLRA-protected rights—even though the risk of
intruding on NLRA rights might be “comparatively
slight”6—without taking into account the many legitimate
justifications associated with particular policies, rules and
handbook provisions, which may have as their purpose
analysis is necessary in order to find a rule that expressly restricts Sec. 7
activity is unlawful. As my colleagues point out, however, an employer
may prohibit “union talk” during working time if the prohibition is non-
discriminatory. That is, “an employer may forbid employees from talk-
ing about a union during periods when the employees are supposed to be
actively working, if that prohibition also extends to other subjects not
associated or connected with the employees’ work tasks. However, an
employer violates the Act when employees are forbidden to discuss un-
ionization, but are free to discuss other subjects unrelated to work . . . .”
Jensen Enterprises, Inc., 339 NLRB 877, 878 (2003). Here, Clemons’
directive was discriminatory: Clemons told employees not to discuss the
Union at work, and the record evidence demonstrates that the Respond-
ent routinely allowed employees to discuss other non-work-related sub-
jects during working time. Accordingly, I agree with my colleagues that
Clemons’ “no union talk” directive violated NLRA Sec. 8(a)(1).
5 I agree with my colleagues that the judge erred in finding that when
Clemons told employees that the Union should not be discussed at work,
he was applying the Respondent’s rule prohibiting “unnecessary conver-
sations.” The Respondent did not apply its “no unnecessary conversa-
tions” rule to restrict NLRA-protected activity. I emphasize that the
judge did not find, and neither do my colleagues, that employees would
reasonably construe the “no unnecessary conversations” rule to prohibit
Sec. 7 activity.
6 Great Dane, 388 U.S. at 34.
G4S SECURE SOLUTIONS (USA) INC. 9
avoiding potentially fatal accidents, reducing the risk of
workplace violence, and preventing unlawful harassment.
As I explained in William Beaumont:
 Lutheran Heritage is contrary to Supreme
Court precedent establishing that, whenever
work requirements are alleged to violate the
NLRA, the Board must give substantial con-
sideration to the justifications associated with
the rule, rather than only considering a rule’s
potential adverse effect on NLRA rights.7
 Lutheran Heritage is contradicted by the
NLRB’s own cases establishing that numerous
work requirements and restrictions are law-
ful—for example, no-solicitation and no-dis-
tribution rules, off-duty employee access rules,
“just cause” provisions and attendance re-
quirements—notwithstanding the fact that
each would fail the Lutheran Heritage “rea-
sonably construe” test.8
 The Board has engaged in a balancing of com-
peting interests—in the above cases and others
spanning more than six decades—without dis-
regarding the justifications associated with
particular rules and requirements.9
 Under Lutheran Heritage, the Board has inval-
idated many facially neutral work rules merely
because they are ambiguous. However, the
Board’s requirement of linguistic precision
when applying Lutheran Heritage is contrary
to the permissive treatment that Congress, the
Board, and the courts have afforded to “just
cause” provisions, benefit plans, and other em-
ployment-related requirements throughout the
Act’s history.10 Moreover, given that many
ambiguities are inherent in the NLRA itself, it
is unreasonable to find that reasonable work
requirements violate the NLRA merely be-

7 See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798 (1945)
(describing the need to balance the “undisputed right of self-organization
assured to employees” and “the equally undisputed right of employers to
maintain discipline in their establishments,” rights that “are not unlimited
in the sense that they can be exercised without regard to any duty which
the existence of rights in others may place upon employer or employee,”
because the “[o]pportunity to organize and proper discipline are both es-
sential elements in a balanced society”); NLRB v. Erie Resistor Corp.,
373 U.S. 221, 229 (1963) (referring to the “delicate task” of “weighing
the interests of employees in concerted activity against the interest of the
employer in operating his business in a particular manner and of balanc-
ing . . . the intended consequences upon employee rights against the busi-
ness ends to be served by the employer’s conduct”); Great Dane, 388
U.S. at 33–34 (referring to the Board’s “duty to strike the proper balance
between . . . asserted business justifications and the invasion of employee
rights in light of the Act and its policy”); Southern Steamship Co. v.
NLRB, 316 U.S. 31, 47 (1942) (“[T]he Board has not been commissioned
to effectuate the policies of the [Act] so single-mindedly that it may
wholly ignore other and equally important Congressional objectives.”).
Cf. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 680–681
cause employers cannot discharge the impos-
sible task of anticipating and carving out every
possible overlap with some potential NLRA-
protected activity.
 The Lutheran Heritage “reasonably construe”
test stems from several false premises that are
contrary to the NLRA, the most important of
which is a misguided belief that unless em-
ployers formulate written policies, rules and
handbooks that can never be construed in a
manner that conflicts with some type of hypo-
thetical NLRA protection, employees are best
served by not having employment policies,
rules and handbooks at all. In this respect, Lu-
theran Heritage requires perfection that liter-
ally has become the enemy of the good.11
 The Lutheran Heritage “reasonably construe”
test improperly limits the Board’s discretion,
contrary to the Board’s responsibility to apply
the “general provisions of the Act to the com-
plexities of industrial life.”12 It does not permit
the Board to afford greater protection to those
Section 7 activities that are central to the Act
(as compared to other types of activity that
may lie at the periphery of the Act or rarely if
ever occur), to make reasonable distinctions
among different types of justifications under-
lying particular rules, to differentiate between
different industries or work settings, or to take
into account discrete events that, if considered,
may demonstrate that the justifications for cer-
tain work requirements outweigh their poten-
tial impact on some type of NLRA-protected
activity.13
 If a particular work rule exists for important
reasons that require the Board to conclude that
(1981) (“[T]he Act is not intended to serve either party’s individual in-
terest, but to foster in a neutral manner a system in which the conflict
between these interests may be resolved.”). See generally William Beau-
mont, supra, slip op. at 11–12 (Member Miscimarra, concurring in part
and dissenting in part).
8 See William Beaumont, supra, slip op. at 12 (Member Miscimarra,
concurring in part and dissenting in part).
9 Id., slip op. at 12–13, 20–21 (Member Miscimarra, concurring in part
and dissenting in part).
10 Id., slip op. at 8, 13–14 & fns. 29–31 (Member Miscimarra, concur-
ring in part and dissenting in part).
11 Id., slip op. at 8, 13–15 (Member Miscimarra, concurring in part
and dissenting in part).
12 NLRB v. Erie Resistor Corp., 373 U.S. at 236; see also NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The responsibility to
adapt the Act to changing patterns of industrial life is entrusted to the
Board.”).
13 See William Beaumont, supra, slip op. at 9, 15 (Member Misci-
marra, concurring in part and dissenting in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
“the rule on its face is not unlawful,”14 Lu-
theran Heritage fails to recognize that the
Board may find that the employer has violated
Section 8(a)(1) by applying the rule to restrict
NLRA-protected activity.15 Here as well, Lu-
theran Heritage prevents the Board from dis-
charging its duty to apply the “general provi-
sions of the Act to the complexities of indus-
trial life.”16
 The Lutheran Heritage “reasonably construe”
test has been exceptionally difficult to apply,
many Board decisions have disregarded im-
portant qualifications set forth in Lutheran
Heritage itself,17 and Lutheran Heritage has
consistently produced arbitrary results.18
As I stated in William Beaumont, our experience with
the Lutheran Heritage “reasonably construe” standard
“has revealed its substantial limitations, as well as its de-
parture from the type of balancing required by Supreme
Court precedent and the Board’s own decisions.”19 For
the above reasons, Lutheran Heritage should be overruled
by the Board, and if the Board fails to do so, it should be
repudiated by the courts.
B. The Respondent’s Rules, Policies and Handbook
Provisions, Evaluated
1. Confidentiality rule prohibiting employees from
discussing “wages and salary information”
The Respondent maintains a rule that prohibits employ-
ees from discussing “wages and salary information.” The

14 Aroostook County Regional Ophthalmology Center v. NLRB, 81
F.3d 209, 213 (D.C. Cir. 1996) (emphasis added).
15 In Aroostook County Regional Ophthalmology Center, supra, the
Court of Appeals for the D.C. Circuit stated:
In the absence of any evidence that [the employer] is imposing an un-
reasonably broad interpretation of the rule upon employees, the Board’s
determination to the contrary is unjustified. If an occasion arises where
[the employer] is attempting to use the rule as the basis for imposing
questionable restrictions upon employees’ communications, the em-
ployees may seek review of the Company’s actions at that time. How-
ever, the rule on its face is not unlawful.
Id.; see also Adtranz ABB Daimler-Benz Transportation v. NLRB, 253
F.3d 19, 28 (D.C. Cir. 2001) (stating that the Board cannot find a facially
neutral policy unlawful based upon “fanciful” speculation, and the Board
must “consider the context in which the rule was applied and its actual
impact on employees”). See William Beaumont, supra, slip op. at 19–20
& fn. 60 (Member Miscimarra, concurring in part and dissenting in part).
16 NLRB v. Erie Resistor Corp., 373 U.S. at 236; NLRB v. J.
Weingarten, Inc., 420 U.S. at 266–267. See generally William Beau-
mont, supra, slip op. at 12 (Member Miscimarra, concurring in part and
dissenting in part).
17 See William Beaumont, supra, slip op. at 13–14 fn. 29; id., slip op.
at 18 fn. 55 (Member Miscimarra, concurring in part and dissenting in
part).
18 Compare Adtranz ABB Daimler-Benz Transportation v. NLRB, 253
F.3d at 27 (finding it lawful to maintain rule prohibiting “abusive or
threatening language to anyone on company premises”) and Lutheran
Heritage, 343 NLRB at 646–647 (finding it lawful to maintain rule pro-
hibiting “abusive or profane language”) with Flamingo Hilton-Laughlin,
Respondent may have legitimate justifications for such a
rule. It may wish to prevent other businesses from discov-
ering its labor costs, which could give the Respondent’s
competitors in the security industry an edge in bidding for
contracts. The Respondent may also wish to avoid con-
flicts that may arise when employees learn of discrepan-
cies between what they are paid and what others are paid.
On the other hand, discussions concerning wages and sal-
ary are central to many types of activity that are protected
under NLRA Section 7, and that very feeling of dissatis-
faction employees may experience upon learning of wage
discrepancies may serve as the impetus to “concerted ac-
tivities for the purpose of . . . mutual aid or protection,”
which NLRA Section 7 protects.
Balancing these rights and interests, I believe the poten-
tial adverse impact of the Respondent’s rule on Section 7
activity outweighs any legitimate justifications for main-
taining the rule. I recognize that the Respondent has a le-
gitimate interest in keeping its wage and salary structure
out of its competitors’ hands. However, wage and salary
information relates to core rights under the NLRA, espe-
cially in relation to the sharing of such information among
employees or between employees and potential union rep-
resentatives. The Board may take notice that restrictions
on sharing wage and salary data have been relied upon by
employers at various times to prevent employees from en-
gaging in NLRA-protected activity.20 Accordingly, for
the above reasons, I concur in my colleagues’ finding that
330 NLRB 287 (1999) (finding it unlawful to maintain rule prohibiting
“loud, abusive or foul language”). Also, compare Palms Hotel & Casino,
344 NLRB 1363, 1363 (2005) (finding it lawful to maintain rule prohib-
iting “conduct which is . . . injurious, offensive, threatening, intimidat-
ing, coercing, or interfering with” other employees) with Lafayette Park
Hotel, 326 NLRB 824, 825 (1998) (finding it unlawful to maintain rule
prohibiting “false, vicious, profane or malicious statements”), enfd. 203
F.3d 52 (D.C. Cir. 1999). See generally William Beaumont, supra, slip
op. at 15–18 (Member Miscimarra, concurring in part and dissenting in
part).
In part, the arbitrary results associated with application of the Lu-
theran Heritage “reasonably construe” standard have resulted from
many Board decisions that have disregarded important qualifications set
forth in Lutheran Heritage itself. See William Beaumont, supra, slip op.
at 18 fn. 55 (Member Miscimarra, concurring in part and dissenting in
part).
19 William Beaumont, supra, slip op. at 18 (Member Miscimarra, con-
curring in part and dissenting in part).
20 I believe that in carrying out its responsibility to determine whether
particular work rules, policies and handbook provisions unlawfully in-
terfere with NLRA-protected rights, the Board cannot appropriately in-
struct employers that particular wording must or should be contained in
them. I also believe it is inappropriate for the Board to conclude that the
mere maintenance of facially neutral work rules, policies and handbook
provisions violates Sec. 8(a)(1) merely because there may be some am-
biguity in the wording of a rule or overlap with potential NLRA-
protected activity. See William Beaumont Hospital, 363 NLRB No. 162,
slip op. at 8, 13 & fn. 29, 14 & fns. 30–31 (Member Miscimarra, concur-
ring in part and dissenting in part); cf. NLRA Sec. 8(d) (precluding the
Board from imposing substantive contract terms on parties); H.K. Porter
Co. v. NLRB, 397 U.S. 99, 102 (1970) (same). However, our cases make
G4S SECURE SOLUTIONS (USA) INC. 11
the Respondent violated NLRA Section 8(a)(1) by main-
taining a rule prohibiting employees from discussing
“wages and salary information.”
2. Confidentiality rule prohibiting employees from giv-
ing interviews or making public statements about the Re-
spondent’s activities or policies
The Respondent maintains a confidentiality rule that
states, in part: “Do not give interviews or make public
statements about the activities or policies of the company
or our client without written permission from G4S Secure
Solutions USA.” This confidentiality rule serves espe-
cially substantial legitimate interests in the instant case be-
cause the Respondent is in the business of providing secu-
rity services, and “interviews” and “public statements”
could predictably disclose matters that bear on the effec-
tiveness of those services, the safety of the Respondent’s
security officers, the well-being of its clients, and poten-
tially national security. For example, such “activities”
could include contingency planning in the event of, and
training exercises in repelling, a terrorist attack on a nu-
clear facility. See G4S Government Solutions, Inc. d/b/a
WSI Savannah River Site, 363 NLRB No. 113 (2016). No
one can reasonably question the importance of preventing
public disclosure of such “activities.”
On the other hand, the Respondent’s “policies” include
policies concerning employees’ terms and conditions of
employment, and its “activities” could encompass activi-
ties that affect those terms and conditions, such as collec-
tive bargaining (if employees were to choose union repre-
sentation) and litigation of work-related disputes against
one or more of its employees. Section 7 protects employ-
ees’ right to make communications to the public that are
part of and related to an ongoing labor dispute. Valley
Hospital Medical Center, 351 NLRB 1250, 1252 (2007)
(citing Allied Aviation Service Co. of New Jersey, Inc., 248
NLRB 229, 231 (1980), enfd. mem. 636 F.2d 1210 (3d
Cir. 1980)). This includes communications about labor
disputes to reporters. Id. (citing Hacienda de Salud-Es-
panola, 317 NLRB 962, 966 (1995)). Thus, the Respond-
ent’s rule has the potential to adversely affect employees’
exercise of their Section 7 rights.
Balancing these rights and interests, I believe the Board
should find that the mere maintenance of this confidenti-
ality rule does not unlawfully interfere with NLRA-
protected activity in the instant case. Although the Board
traditionally disfavors rules that require management ap-
proval or permission for taking particular actions, which
in some scenarios could be interpreted as requiring man-
agement approval or permission to engage in NLRA-
protected activity, I believe such an interpretation is un-
likely here, given the sensitive nature of the Respondent’s

clear that an employer can lawfully maintain a rule requiring strict con-
fidentiality from employees who work in payroll and have access to per-
sonnel records or other information concerning employees’ pay, which
business. Also, there are two additional considerations
that, in my view, make the legitimate interests associated
with this rule outweigh the rule’s potential impact on
NLRA-protected activity.
First, this rule does not on its face restrict NLRA-
protected activity; there is no evidence that the Respond-
ent adopted this rule in response to NLRA-protected ac-
tivity; and there is no evidence that the Respondent has
applied this rule to restrict such activity. Thus, I believe
the mere maintenance of the rule, which is facially neutral,
is permissible given the other considerations referenced
above, but the Board may determine that application or
enforcement of the rule against NLRA-protected activity
violates Section 8(a)(1) of the Act, if and when the rule
were to be applied or enforced in this manner. See, e.g.,
fns. 14–15, supra.
Second, the Respondent, as a federal contractor, is re-
quired by the Department of Labor (DOL) to post a notice
of employee rights under the National Labor Relations
Act, and it complies with this requirement. This posted
notice informs employees, among other things, that they
have the right to “[d]iscuss [their] terms and conditions of
employment or union organizing with [their] co-workers
or a union” and to “[t]ake action with one or more co-
workers to improve [their] working conditions by, among
other means, raising work-related complaints directly with
[their] employer or with a government agency, and seek-
ing help from a union.” I believe this posted statement of
employee rights under the NLRA is a substantial consid-
eration that, in conjunction with the other considerations
discussed above, ameliorates the potential adverse effect
of the mere maintenance of this rule.
As stated above, I do not believe the Board should eval-
uate facially neutral rules under the Lutheran Heritage
“reasonably construe” standard. However, my colleagues
apply this standard, and I believe the objective nature of
the “reasonably construe” standard requires the Board to
regard an employer’s compliance with the DOL disclosure
requirements applicable to federal contractors—or any
other employer notification to employees of their NLRA-
protected rights—as a substantial factor that makes it less
likely that employees would “reasonably construe” an em-
ployer’s mere maintenance of facially neutral rules to un-
lawfully interfere with NLRA-protected rights in violation
of Section 8(a)(1) of the Act. And under the balancing
standard that I believe the Board should apply to evaluate
the lawfulness of an employer’s mere maintenance of fa-
cially neutral work rules, I believe compliance with the
DOL disclosure requirement or other means of notifying
may help prevent employment-related information from being inappro-
priately disclosed to third parties. See Asheville School, Inc., 347 NLRB
877, 877 fn. 2 (2006); Clinton Corn Processing Co., 253 NLRB 622,
623–625 (1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
employees of their NLRA-protected rights should like-
wise be regarded as a substantial factor that militates
against finding a Section 8(a)(1) violation.21
3. Confidentiality rule that restricts the use or disclosure
of “G4S or client information”
In addition to the confidentiality-rule language dis-
cussed above, the Respondent’s confidentiality rule also
contains the following provisions:
The protection of confidential information, trade secrets,
and company-specific operating procedures is vital to
the interests and success of G4S Secure Solutions USA.
Additionally, in the line of duty, you may come into con-
tact with our customers’ confidential information.
Employees who improperly use, reveal, copy, disclose
or destroy G4S or client information will be subject to
disciplinary action, up to and including termination of
employment. They may also be subject to legal action
even if they do not actually benefit from the disclosure.
Such information includes any information considered
proprietary by G4S or the client organization.
Unquestionably, the Respondent has a compelling inter-
est in preventing the disclosure of its “confidential infor-
mation, trade secrets, and company-specific operating
procedures” as well as its clients’ confidential infor-
mation. And it is difficult if not impossible to perceive
how the language of these confidentiality provisions
would adversely affect the exercise by employees of their
Section 7 rights. The above provisions make no reference
to “employee information” or “personnel information” as
being included within “G4S . . . information.” To the con-
trary, the language of the rule makes clear that “G4S . . .
information” consists of “confidential information, trade
secrets, and company-specific operating procedures.” I
conclude that the legitimate justifications associated with
these provisions in the Respondent’s confidentiality rule
clearly outweigh any potential adverse impact on Section
7 activity, and on this basis I concur in my colleagues’
finding that the Respondent did not violate Section 8(a)(1)
by maintaining the two above-quoted paragraphs in its
confidentiality rule.

21 I do not believe that the Respondent’s compliance with the DOL
posting requirement provides blanket immunity from liability under Sec.
8(a)(1) for all its facially neutral rules. For example, I believe the confi-
dentiality rule described above prohibiting employees from discussing
“wages and salary information” violates Sec. 8(a)(1), notwithstanding
the Respondent’s compliance with the DOL posting requirement. In this
regard, as noted above, it is significant that the rule against discussing
wages and salary information prohibits discussions that relate to core
rights that are often the focus of NLRA-protected activities, many of
which include the sharing of wage and salary information. To take a
more extreme example (which I mention here only as a hypothetical il-
lustration), if an employer complied with the DOL posting require-
ment—advising employees of their right to discuss employment terms
and union organizing with each other—this would not render lawful the
4. Social networking policy prohibiting employees from
commenting on “work-related legal matters without
express permission of the Legal Department”
The Respondent maintains a social networking policy
that in part prohibits employees from commenting on
“work-related legal matters without express permission of
the Legal Department.” I believe the Board should find
the mere maintenance of this policy lawful, based on the
following considerations.
First, considering the nature of the Respondent’s busi-
ness, I believe this aspect of its social networking policy
has substantial legitimate justifications. Most businesses
have a legitimate interest in providing for “Legal Depart-
ment” involvement in “work-related legal matters,” and a
broad range of such “legal matters” would have nothing to
do with NLRA-protected rights. For example, if an em-
ployer or one of its officers or other agents faces potential
criminal charges or civil liability, or if the employer is en-
gaged in a contract dispute with another party, the em-
ployer would legitimately wish to ensure that its employ-
ees post nothing on social networking sites that may be
adverse to its legal position.
Second, it is also true that “work-related legal matters”
may implicate employees’ terms and conditions of em-
ployment and be associated—in some hypothetical future
scenario—with NLRA-protected activity. For example,
“work-related legal matters” could include potential or on-
going wage-and-hour lawsuits, or claims by employees al-
leging workplace discrimination on the basis of race, sex,
religion, age, or other protected status. Section 7 protects
employees’ right to discuss such matters—on social net-
working sites and otherwise—provided that such discus-
sions are not “mere griping” but rather “look[] toward
group action.” Mushroom Transportation Co. v. NLRB,
330 F.2d 683, 685 (3d Cir. 1964). Similarly, “work-re-
lated legal matters” could involve NLRA-protected activ-
ity associated with legal claims that employees intend to
bring against the Respondent. Such situations do not in-
herently involve NLRA-protected activity, but in some
circumstances they might. See, e.g., Murphy Oil USA,
Inc., 361 NLRB No. 72, slip op. at 23–25 (2014) (Member
Miscimarra, dissenting in part), enf. denied 808 F.3d 1013
maintenance of a rule that expressly prohibited employees from engag-
ing in the very activities referenced in the DOL posting.
In short, regardless of what standard one applies, when addressing the
legality of facially neutral rules that do not expressly prohibit NLRA-
protected activities, were not adopted in response to such activities, and
have not been applied against such activities, I believe compliance with
the DOL posting requirement or other voluntary notifications of NLRA-
protected rights is a substantial consideration that weighs against finding
the mere maintenance of such rules violates Sec. 8(a)(1). Similarly, I
believe the use of “disclaimer” language in any rule, handbook or policy
likewise warrants substantial consideration and weighs against finding
that the mere maintenance of a facially neutral rule, policy or handbook
provision violates Sec. 8(a)(1). See the discussion of Respondent’s so-
cial media policy, below.
G4S SECURE SOLUTIONS (USA) INC. 13
(5th Cir. 2015). In such circumstances, requiring employ-
ees to secure the permission of its Legal Department be-
fore commenting on such matters on social networking
sites could substantially interfere with NLRA-protected
rights.
Third, it is relevant, in my view, that the social network-
ing policy includes an introductory disclaimer, in boldface
print, stating that “[t]his policy will not be construed or
applied in a manner that interferes with employees’ rights
under federal law.” Also, as noted above, the Respondent,
as a federal contractor, is required by the DOL to post a
notice of employee rights under the National Labor Rela-
tions Act, and it complies with this requirement. See supra
fn. 21 and accompanying text. Balancing all of the above
considerations, I believe the Board should conclude that
this aspect of Respondent’s social networking policy does
not violate Section 8(a)(1).
Again, I do not believe the Board should evaluate fa-
cially neutral rules under the Lutheran Heritage “reason-
ably construe” standard. However, my colleagues apply
this standard, and I believe the objective nature of the “rea-
sonably construe” standard requires the Board to regard
Respondent’s disclaimer and its compliance with the DOL
disclosure requirements applicable to federal contractors
as substantial factors making it less likely that employees
would “reasonably construe” its social networking policy
to interfere with NLRA-protected rights in violation of
Section 8(a)(1) of the Act. Thus, even under the Lutheran
Heritage “reasonably construe” test, I believe these sub-
stantial factors warrant a conclusion that the Respondent’s
social networking policy does not violate Section 8(a)(1),
and I dissent from their finding on this basis also.
Under the balancing standard that I believe the Board
should apply to evaluate the lawfulness of an employer’s
mere maintenance of facially neutral work rules, the dis-
claimer included in the social networking policy and the
Respondent’s compliance with the DOL disclosure re-
quirement are substantial factors that militate against find-
ing a Section 8(a)(1) violation. I believe that the dis-
claimer and the posted statement of employee rights under
the NLRA, taken together, ameliorate the potential ad-
verse effect of this part of the social networking policy on
NLRA-protected activity.22 And the disclaimer and the
posted statement of employee rights under the NLRA, to-
gether with the legitimate justifications discussed above,
outweigh any potential adverse effect on Section 7 activ-
ity. Accordingly, I would find that the Respondent has not
violated Section 8(a)(1) by maintaining language in its so-
cial networking policy prohibiting employees from com-
menting on “work-related legal matters without express
permission of the Legal Department.”

22 Only the social networking policy contains a disclaimer, and the
Respondent does not contend that the notice of employee rights under
5. Social networking policy prohibiting employees from
placing “photographs, images, and videos of G4S em-
ployees in uniform or at a G4S place of work” on a social
networking site
The Respondent’s social networking policy also con-
tains the following provision:
Photographs, images, and videos of G4S employees in
uniform (whether yourself or a colleague) or at a G4S
place of work, must not be placed on any social network-
ing site, unless express permission has been given by
G4S Secure Solutions (USA) Inc.
Contrary to my colleagues, I believe the Board should
affirm the judge’s finding that this aspect of the social net-
working policy is lawful. If the Board applies the Lu-
theran Heritage “reasonably construe” standard (to which
my colleagues adhere), I believe the considerations dis-
cussed above in evaluating other language in the Respond-
ent’s social networking policy—specifically, the policy’s
disclaimer language together with the Respondent’s com-
pliance with the DOL requirement to post a notice of em-
ployee rights under the NLRA—warrant a finding that the
social networking policy does not violate Section 8(a)(1).
Moreover, as noted above, I believe the Board must en-
gage in a meaningful balancing of the legitimate justifica-
tions for maintaining a facially neutral policy against the
potential impact of the policy on the exercise of NLRA-
protected rights. See William Beaumont Hospital, supra.
Here, the legitimate justifications associated with this pol-
icy are substantial. They are much the same as the justifi-
cations described above regarding the part of the Respond-
ent’s confidentiality rule that prohibits employees from
giving interviews or making public statements about the
Respondent’s activities or policies. Indeed, the justifica-
tions for this policy are even more compelling, involving
potential danger to the lives of the Respondent’s security
officers and its clients’ personnel, and even to national se-
curity, if photos or videos of G4S employees engaged in
training exercises or other security-related activities were
to fall into the hands of terrorist organizations or their
sympathizers. No matter how “far-fetched” the majority
believes the above examples of possible security breaches
are, the Board can (and should) take notice that suppos-
edly secure computer systems are frequently compro-
mised, and it is reasonable that the Respondent would seek
to avoid potential security problems that might arise from
an employee’s posting of photographs, images, or videos
of “G4S employees in uniform . . . or at a G4S place of
work” on Facebook or Instagram.
It is true that, in some circumstances, the above lan-
guage could be construed as interfering with the ability of
the NLRA is sufficient by itself to ameliorate the adverse impact of other
rules and handbook provisions on potential Sec. 7 activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Respondent’s employees to post photos or videos on so-
cial networking sites showing G4S employees engaged in
union or other protected concerted activities, such as dis-
tributing union handbills or attending a union meeting.
These types of activities—if they were to occur—could be
protected under Section 7 of the Act, and any interference
with such activities would violate Section 8(a)(1). How-
ever, we are addressing, at this point, Respondent’s mere
maintenance of this social networking policy, which is
neutral on its face, which was not adopted in response to
NLRA-protected activity, and which has not been applied
to restrict such activity. See fns. 14–15, supra. Especially
in this context, I believe the adverse impact of this policy
on the potential exercise of Section 7 rights is “compara-
tively slight”23 and far less substantial than the relevant le-
gitimate justifications.
Although disseminating depictions of employees en-
gaged in NLRA-protected activities may be encompassed
within the protection of Section 7, the Act’s more im-
portant rights attach to the activities themselves—distrib-
uting the handbills, attending the union meeting. I do not
discount the importance of Section 7 protection, but the
Board’s application of the NLRA to the “complexities of
industrial life”24 renders inappropriate a one-size-fits-all
analysis. Moreover, as the judge pointed out, the Re-
spondent’s social networking policy does not prohibit em-
ployees from taking photos or shooting videos of G4S em-
ployees in uniform. It simply prohibits employees from
posting them to a social networking site where they are
potentially viewable by anyone in the world who has in-
ternet access. Those who wish to disseminate to their
coworkers images of G4S employees engaged in union or
other protected activities may find other ways of doing so
besides posting them on a social networking site.
Finally, as discussed above, the social networking pol-
icy contains a disclaimer in boldface print, stating that
“[t]his policy will not be construed or applied in a manner
that interferes with employees’ rights under federal law,”
and the Respondent—in conformity with DOL obligations
as a federal contractor—displays a posted notice of em-
ployee rights under the NLRA. For the reasons explained
above, I believe the combination of the disclaimer and the
posted DOL notice reduces even further the potential for
any adverse impact on Section 7 activity.
In short, I believe my colleagues, applying the Lutheran
Heritage “reasonably construe” test, erroneously conclude
that this aspect of Respondent’s social networking policy
violates Section 8(a)(1). Moreover, I believe the Board is
required to engage in a meaningful balancing of the pol-
icy’s legitimate justifications against its potential interfer-
ence with the exercise of NLRA-protected rights. Espe-
cially if one conducts this type of analysis, which is pre-
cluded by Lutheran Heritage, I believe the Board should

23 Great Dane, 388 U.S. at 34.
24 Supra fn. 12.
affirm the judge’s finding that this part of the social net-
working policy is lawful.
6. The prohibition on wearing “insignias, emblems, but-
tons, or items other than those issued by the company”
on security officers’ uniforms
The Respondent’s Security Officer Handbook contains
a “Professional Image” rule that reads, in relevant part, as
follows:
You must be neat and clean while on duty. You must
wear only the complete uniform as
prescribed by your supervisor. Any uniformed security
personnel who become pregnant will be provided with
appropriate uniform clothing to maintain a professional
appearance. The area or branch office will be responsi-
ble for acquiring maternity pants and larger shirts
through the Purchasing Department.
Due to the public nature of our business and the business
necessity that uniformed personnel represent figures of
authority, we have established the following rules for
personal appearance.
. . . . . . . . . .
No insignias, emblems, buttons, or items other than
those issued by the company may be worn on the uni-
form without expressed permission.
My colleagues find unlawful the last part of this rule—
prohibiting the wearing of “insignias, emblems, buttons,
or other items” on security officers’ uniforms—and they
find it unlawful for the reasons stated by the judge. I re-
spectfully disagree, and I believe the Board should find
that the mere maintenance of this rule does not interfere
with the exercise of NLRA-protected rights in violation of
Section 8(a)(1).
Preliminarily, long-established case law already applies
a balancing analysis to rules that have the effect of restrict-
ing the wearing of union insignia. As the judge states in
her decision, the Supreme Court in Republic Aviation, 324
U.S. at 793, held that employees have a protected right to
wear union insignia at work, which must be balanced,
however, against the employer’s right to maintain produc-
tion and discipline. Id. at 801–803, 797–798. Refining
this balancing analysis, the Board has specified certain
“special circumstances” that privilege an employer to pro-
hibit the wearing of union insignia, including when the
wearing of such insignia “may . . . unreasonably interfere
with a public image which the employer has established,
as part of its business plan, through appearance rules for
its employees.” United Parcel Service, 312 NLRB 596,
597 (1993), petition for review granted 41 F.3d 1068 (6th
Cir. 1994).25
25 The Board in United Parcel Service found that the union button at
issue in that case did not unreasonably interfere with UPS’ public image.
G4S SECURE SOLUTIONS (USA) INC. 15
The Board’s Division of Advice has concluded that the
“interference with a public image” special circumstance
applies in “the security industry . . . to an even greater de-
gree than . . . other industries where the Board has permit-
ted limitations on union insignia,” and it explained its rea-
soning as follows:
The uniform that [security] employees wear is designed
to enable them to easily command respect, so that they
can protect lives and property, control unsafe situations,
and apprehend criminals. The uniform sends a message
to all people encountered by the security officer that an
authority figure is present. Although the wearing of a
[u]nion pin would not interfere with the public’s recog-
nition of the officers as security officers, it could inter-
fere with the message of authority that the [e]mployer
hopes its officers will convey. Furthermore, it is likely
that the [e]mployer’s business would suffer if its clients
determined that its officers did not adequately convey a
presence of authority.
Pinkerton’s Inc., Nos. 18–CA–16257,–16332, 2003 WL
26072095 (Jan. 3, 2003). Based on these considerations,
the Division of Advice concluded that Pinkerton’s “may
lawfully prohibit working security officers from wearing
any pins/buttons, including [u]nion insignia, on their uni-
forms.” Id. The Division further concluded that Pinker-
ton’s rule, which applied to all its security officers, was
“not overbroad” in that regard because “all of the Em-
ployer’s security officers are in positions where they may
need to assist or confront members of the public.” Id. But
the Division also concluded that Pinkerton’s rule was
overbroad to the extent that “it applie[d] to the off-duty
wearing of union insignia.” Id.
I find the Division of Advice’s analysis persuasive.
However, the judge, upon whose reasoning my colleagues
rely, found the Respondent’s “Professional Image” rule
unlawful on two grounds: it does not specify that it applies
only to security officers who are on duty, and it applies to
all the Respondent’s security officers, including those who
work in the Passenger Assistance Area (PAA) and do not
have face-to-face contact with the public. I respectfully
disagree with this reasoning.
First, I believe it is apparent from the entirety of the
“Professional Image” rule that the language prohibiting
security officers from wearing on their uniforms “insignia,
emblems, buttons, or items other than those issued by the
company” applies only to officers when they are on duty.
The “on duty” scope of the rule is stated in the rule’s first
sentence: “You must be neat and clean while on duty.”
And it is implicit in the rule’s next sentence, which states:
“You must wear only the complete uniform as prescribed
by your supervisor.” It goes without saying that this state-
ment only applies to officers when they are on duty, since

Id. at 597–598. The Sixth Circuit disagreed and reversed the Board’s
decision.
off-duty officers have no obligation to wear their uniforms
and typically would not do so except when commuting to
and from work. The “Professional Image” rule then intro-
duces more specific rules, including the “insignia” rule, by
invoking “the public nature of our business and the busi-
ness necessity that uniformed personnel represent figures
of authority.” Again, this language reinforces the “on
duty” scope of the rule because the Respondent has no in-
terest in ensuring that its uniformed security officers “rep-
resent figures of authority” when they are off duty. Con-
trary to the judge and my colleagues, I believe the most
reasonable interpretation of the “insignia” prohibition
when read in the context of the rest of the “Professional
Image” rule is that it applies to security officers only when
they are on duty.
The judge’s second reason for invalidating this rule pre-
sents a closer issue. The record does not establish that
security officers assigned to the PAA—who monitor se-
curity cameras and control access to various areas of the
client’s property—regularly interact with members of the
public. However, it is possible that members of the public
may try to gain access to secure areas within the client’s
property, and one of the Respondent’s security functions
is to address such intrusions in an appropriate manner. In
such circumstances, it would be important that security of-
ficers confronting those individuals “convey a presence of
authority.” Pinkerton’s, supra. In addition, the record re-
flects that security officers working in the PAA regularly
interact with the client’s employees. As the Division of
Advice reasoned—in my view, persuasively—”the wear-
ing of a [u]nion pin . . . could interfere with the message
of authority that the [e]mployer hopes its officers will con-
vey,” and “it is likely that the [e]mployer’s business would
suffer if its clients determined that its officers did not ad-
equately convey a presence of authority.” Pinkerton’s, su-
pra (emphasis added).
I believe it is also important to keep in mind two con-
siderations that are relevant when evaluating the mere
maintenance of a facially neutral work rule like the Re-
spondent’s prohibition against “insignias, emblems, but-
tons, or items other than those issued by the company.”
First, because the Board focuses on the potential effect
of such a rule on the exercise of Section 7 rights, there is
a temptation to think that the world of buttons consists ex-
clusively of buttons that display messages that involve un-
ion organizing, wage-related boycotts and other types of
NLRA-protected activities. Obviously, this is not true.
There is a near-endless variety of “insignias, emblems,
and buttons” that have absolutely nothing to do with
NLRA-protected activity. For example, a random image
from the website “wackybuttons” displays buttons that
state the following:
 “I am dog”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
 “Just kitten” (with depiction of kitten)
 “There are monsters in the gelatin” (with de-
piction of monster)
 “I have super powers”
 “Nerd”
 “Stud” (with depiction of muffin, as in “Stud
muffin”)
 Yellow happy face (with red tongue sticking
out)
 “I like ice cream”
 “Yay, Toast!” (with depiction of piece of
bread)
 “Growing old is mandatory, growing up is op-
tional.”26
A security company has every right to prohibit security
employees from wearing any and every one of the above
“insignias, emblems, buttons, or other items,” none of
which implicates NLRA-protected rights.
Second, because my colleagues invalidate this aspect of
Respondent’s “Professional Image” rule, they prevent the
Respondent—whose business involves extremely serious
security and protective force responsibilities—from im-
posing any prohibition that would prevent security person-
nel from wearing the above buttons. I have nothing
against dogs, kittens, gelatin, or toast. However, if armed
terrorists are attacking a secure facility that is protected by
G4S personnel, it would not instill confidence if the re-
sponsible security officers are wearing buttons that read “I
am dog,” “Just kitten,” and “There are monsters in the gel-
atin.” Perhaps it would be helpful if they wear the button
that states “I have super powers,” but that is not up to the
NLRB to decide.27
Again, we are dealing here with the mere maintenance
of a facially neutral rule that does not expressly restrict
NLRA-protected activity, was not adopted in response to
such activity, and has not been applied against such activ-
ity. It is unreasonable to assume that all “insignias, em-
blems, buttons, or other items” that might be worn by se-
curity officers involve NLRA-protected activities. More-
over, as noted previously, the Respondent has posted a no-
tice advising employees of their rights under the NLRA,
which the Board must consider when evaluating whether
a facially neutral rule interferes with the exercise of Sec-
tion 7 rights. See supra fn. 21 and accompanying text. If

26 See http://www.wackybuttons.com/images/home/carousel/caro_
img2.jpg (last viewed on August 10, 2016).
27 My colleagues say that the Respondent is free to prohibit buttons
like these through a professional image rule “that does not interfere with
employees’ Sec. 7 rights,” and they make a similar point regarding the
social networking policy’s prohibition on posting photos or videos of
G4S employees in uniform or at work on any social networking site.
Easier said than done. No matter how carefully such a rule were drafted
in an attempt to carve out and permit all, and only, Sec. 7 activities,
chances are the rule would be susceptible to an interpretation that would
overlap with potential future protected activities in some way. Taking
the Respondent were to apply its “Professional Image”
rule against the wearing of union-related buttons by secu-
rity officers who never see members of the public, the
Board could reevaluate the legality of the Respondent’s
actions.
For these reasons, I believe special circumstances priv-
ilege the Respondent to prohibit the wearing of “insignias,
emblems, buttons, or items other than those issued by the
company” by all its uniformed security officers, including
those assigned to the PAA.
C. The Non-Rule Allegations
1. Impression of Surveillance
I join my colleagues in finding that the Respondent cre-
ated the impression that its employees’ union activities
were under surveillance, in violation of NLRA Section
8(a)(1), when supervisor Jason Armstrong told employee
Sean Nagler that he (Armstrong) knew that Nagler had
talked to other employees about the Union. My colleagues
find this violation for the reasons stated by the judge. I
concur, with the following qualification.
The judge stated that “whenever an employer reveals
specific information about union activity that is not gener-
ally known, and does not reveal its source,” this creates
the impression of surveillance. I believe this is too broad
a statement because it would encompass situations where
an employer tells an employee that the employer “heard”
something regarding its employees’ union activities. Such
a statement does not reasonably support a finding that the
employer has created the impression of surveillance. It is
no surprise that, in virtually every workplace, supervisors
and managers hear many things “through the grapevine,”
including information that is volunteered by employees,
coworkers and subordinates. Therefore, evidence that a
supervisor or other agent of an employer has made an “I
heard” statement does not sustain the General Counsel’s
burden to prove creation of an impression of surveillance
by a preponderance of the evidence. See SKD Jonesville
Division L.P., 340 NLRB 101, 101–102 (2003).
However, in the instant case, the judge found that
Nagler’s union activity “was not open or publicized.” Alt-
hough the Respondent excepts to this finding, it does not
contend in its supporting brief that the record evidence
demonstrates to the contrary.28 And Armstrong did not
say he “heard” Nagler had talked to other employees about
the professional image rule, for example, one would think that a prohibi-
tion reasonably construed to encompass buttons that say “this place
stinks!” or “just another wage slave” would be permissible, particularly
on a security guard’s uniform. However, a foul odor in a workplace is
surely a condition of employment, and wages are central to Sec. 7 con-
cerns, so such a rule would be unlawful under Lutheran Heritage. The
impossibility of drafting rules that do not overlap in some way with po-
tential Sec. 7 activity is one reason I favor abandoning the “reasonably
construe” standard in favor of a balancing analysis. See William Beau-
mont Hospital, 363 NLRB No. 162, slip op. at 14 & fns. 30, 31.
28 Of course, if an employee openly engages in union activity in a
readily observable location, a statement that reveals the employer’s
G4S SECURE SOLUTIONS (USA) INC. 17
the Union. Armstrong stated that he “knew” Nagler had
talked to other employees about the Union. This may
seem like a minor difference in wording, and there is no
evidence that Armstrong engaged in surveillance of
Nagler’s union activities. However, on these facts, exist-
ing Board case law (including the decisions cited by the
judge) supports a finding that the Respondent created the
impression of surveillance in violation of Section 8(a)(1)
of the Act.
2. Discipline of employee Debra Sterling
The judge and my colleagues find that the Respondent
violated Section 8(a)(1) of the Act when it issued a warn-
ing to employee Debra Sterling. For the following rea-
sons, I respectfully disagree.29
Sterling began working as a security officer on the East
Valley Metro Rail contract in November 2009. In June
2010, Sterling and employee Asucena Banuelos discussed
the unwelcome behavior of Project Manager Major Robert
Thario. Sterling shared with Banuelos notes she had
drafted for a letter she intended to send to the Equal Em-
ployment Opportunity Commission (EEOC) alleging sex-
ual harassment. Banuelos assisted Sterling with those
notes. The Respondent provides its employees a com-
plaint hotline, and Banuelos encouraged Sterling to call
the hotline. (On June 29, Banuelos called the hotline and
complained about Thario’s behavior toward herself.)
Sterling also shared her concerns with employee Carol
Taresh, and Taresh encouraged Sterling to obtain legal
counsel and contact the EEOC.
On June 30, Sterling informed Human Resources Man-
ager Janelle Kercher of her complaints about Thario’s be-
havior towards herself. Kercher informed Larry Pablo, the
general manager of the Respondent’s Phoenix-area office,
and Sterling then met with Pablo. At that meeting, Ster-
ling told Pablo that she had shared her concerns about
Thario’s behavior with Banuelos. On July 9, Sterling
called the Respondent’s hotline. Sterling’s hotline com-
plaint about Thario was referred to Pablo. Pablo inter-
viewed Thario, who denied Sterling’s allegations, and
Pablo was unable to substantiate the allegations. On July
15, Sterling filed a charge with the EEOC.
On October 27, the EEOC mailed Sterling a Dismissal
and Notice of Rights, also known as a “right to sue” letter.

knowledge of that activity does not create an impression of surveillance.
It merely creates the impression that the employer has observed open
union activity, which is perfectly lawful. See Sunshine Piping, Inc., 350
NLRB 1186, 1186–1187 (2007); Michigan Roads Maintenance Co., 344
NLRB 617, 617 fn. 4 (2005).
29 For the reasons stated by the judge as modified by my colleagues, I
agree that the Respondent violated Sec. 8(a)(3) of the Act by discharging
employee Donald Wickham.
30 Although Pablo had been unable to substantiate Sterling’s allega-
tions in July regarding Project Manager Thario’s behavior, Pablo later
learned that Thario has admitted engaging in inappropriate conduct with
another female officer. Thario was discharged in August, and Armstrong
became project manager in October.
On November 1, the Respondent received a copy of Ster-
ling’s “right to sue” letter. That copy, which is included
in the record as Respondent’s Exhibit 15, is date-stamped
received in the Respondent’s Legal Department on No-
vember 1, and it indicates that two individuals were copied
on the letter: Pablo, and an individual whose name is
partly cut off but appears to be Marmon.
Sterling signed up on a whiteboard to work an overtime
shift on November 9. A few days before November 9,
Lieutenant Timothy Eggleston told Sterling that he had to
cancel overtime. A notation was made on the whiteboard
stating that all overtime was canceled, and Sterling’s name
did not appear on the typed schedule for November 9.
Sterling did not report to work on November 9. Sterling
had no unexcused absences prior to November 9.
Major Jason Armstrong became the new project man-
ager for the East Valley Metro Rail contract in October
2010.30 Before October, Armstrong had been assigned
elsewhere. On November 10, Armstrong directed Eg-
gleston to issue Sterling a final warning for no-call/no-
show on November 9. Armstrong told Sterling that Oper-
ations Manager Ed Martini had wanted to fire Sterling for
missing her shift, but that he (Armstrong) had talked Mar-
tini out of it. Sterling checked the schedule and saw that
her name had been penciled in for November 9.
Sterling protested to Human Resources Manager
Kercher that she did not show up or call in on November
9 because she believed her November 9 overtime shift had
been canceled. Kercher met with Martini, Armstrong, Eg-
gleston, and Lieutenant Danny Rice. Armstrong defended
the final warning on the basis that Sterling was no-call/no-
show. Eggleston said he merely followed Armstrong’s or-
der to issue the final warning. Rice told Kercher about the
note on the whiteboard stating that all overtime was can-
celed, and he added that all the names of employees who
had signed up for overtime on the whiteboard had been
erased. Kercher decided that there had been a misunder-
standing, and she reduced the final warning first to a writ-
ten warning and then to an oral warning.
The judge found that the Respondent conceded both that
Sterling engaged in protected concerted activity and that
the Respondent knew that Sterling engaged in protected
concerted activity.31 As evidence that the Respondent har-
31 The Respondent did not except to these findings. However, to es-
tablish that Sterling’s protected concerted activity was a motivating fac-
tor in her discipline, the General Counsel had the burden to prove, among
other things, that the Respondent “knew of the concerted nature of the
employee’s activity.” Meyers Industries, 268 NLRB 493, 497 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), on remand Meyers Industries,
281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Even if
the Respondent was aware of certain activity that was, in fact, concerted,
this does not establish that the Respondent was aware of what made that
activity concerted, i.e., the concerted nature of that activity. For the rea-
sons discussed below, I do not believe the evidence supports a finding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
bored animus against Sterling’s protected concerted activ-
ity, the judge relied on two sets of facts: (i) evidence that
two other employees had received either an oral or written
warning for a first unexcused absence—lesser forms of
discipline than the final warning Sterling initially re-
ceived—and that a third employee had received a final
written warning for three consecutive unexcused ab-
sences, and (ii) Martini’s anger at Sterling and the fact that
(quoting from the judge’s decision) “Respondent has pre-
sented no evidence as to why Martini would be mad at her
other than for her protected concerted activity.” My col-
leagues add a third fact: the Respondent’s November 1
receipt of a copy of Sterling’s “right to sue” letter from the
EEOC.
For the following reasons, I believe the evidence that
the judge and my colleagues rely on is insufficient to sus-
tain the General Counsel’s burden to prove that Sterling’s
protected concerted activity was a motivating factor in her
discipline.32

that the Respondent was aware of the concerted nature of Sterling’s ac-
tivity.
32 Wright Line, 251 NLRB 1083, 1089 (1980) (subsequent history
omitted).
33 I believe Sterling’s and Banuelos’ collaboration on Sterling’s notes
constituted concerted activity. Their joint work on those notes was not
“mere talk,” Mushroom Transportation Corp. v. NLRB, 330 F.2d at 685,
but was rather, in itself, concerted activity. See Meyers Industries, 268
NLRB at 497 (“In general, to find an employee’s activity to be ‘con-
certed,’ we shall require that it be engaged in with or on the authority of
other employees, and not solely by and on behalf of the employee him-
self.”). Whether those meetings constituted concerted activity for the
purpose of mutual aid or protection perhaps presents a closer question,
since the contemplated EEOC letter/charge was Sterling’s alone. How-
ever, Banuelos was also an object of Thario’s unwelcome advances. If
Sterling were successful in her efforts to stop Thario’s behavior, Banue-
los stood to benefit as well. Accordingly, I believe that when Sterling
and Banuelos collaborated on Sterling’s notes for Sterling’s EEOC
charge, they were engaged in concerted activity for the purpose of mutual
aid or protection, which is protected by Sec. 7 of the Act.
I do not believe, however, that Sterling’s conversation with Taresh
qualifies as concerted activity. Sterling told Taresh about Thario’s be-
havior, and Taresh encouraged Sterling to get legal counsel and talk to
the EEOC. “Activity which consists of mere talk must, in order to be
protected, be talk looking toward group action. If its only purpose is to
advise an individual as to what he could or should do without involving
fellow workers or union representation to protect or improve his own
status or working position, it is an individual, not a concerted, activity . .
. .” Mushroom Transportation, supra. Sterling and Taresh engaged in
“mere talk” that did not “look[] toward group action.” Rather, Taresh
advised Sterling “as to what [she] could or should do without involving
fellow workers or union representation to protect or improve [her] own
status or working position,” id.—namely, to get legal counsel and talk to
the EEOC. In contrast, Sterling and Banuelos engaged in more than
“mere talk”: they worked together on Sterling’s notes for an EEOC
charge.
34 Sterling met with Kercher by herself, for herself. She told Kercher
about Thario’s behavior toward herself. She might have mentioned that
she had spoken about Thario with Banuelos, since in a second meeting
with Kercher, Sterling referred to the fact that Banuelos knew about Ster-
ling’s experiences with Thario, and she did so in a manner that suggested
Sterling had previously disclosed that fact to Kercher. However, there is
no evidence that Sterling told Kercher that Banuelos was also experienc-
First, the Respondent concedes that Sterling engaged in
protected concerted activity, and I believe she did. How-
ever, the only evidence that Sterling engaged in protected
concerted activity is evidence that Sterling and Banuelos
collaborated on Sterling’s notes for a letter she intended to
send to the EEOC.33 After that, Sterling’s activities were
strictly individual.34
Second, there is no evidence that either Martini or Arm-
strong—the two managers who were responsible for Ster-
ling’s initial discipline (before it was reduced to an oral
warning by Kercher)—knew that Sterling had engaged in
protected concerted activity. Armstrong was working on
an entirely different contract at the time of the relevant
events. As for Martini, the only evidence the General
Counsel relies on to establish that Martini knew of Ster-
ling’s protected concerted activity is an email Martini was
copied on, but that email would not have informed Martini
that Sterling had engaged in protected concerted activity.35
Third, Pablo (at least) knew that Sterling had filed a
charge with the EEOC, having been copied on the “right
ing unwanted advances from Thario, and in particular, there is no evi-
dence that Sterling told Kercher that she and Banuelos had worked con-
certedly on Sterling’s notes towards a potential EEOC charge.
Next, Sterling met with Pablo—again, by herself, and for herself.
Sterling mentioned to Pablo that she had shared her concerns about
Thario with Banuelos, but there is no evidence she told Pablo that Ba-
nuelos was also experiencing unwanted advances from Thario, and as
with Kercher, there is no evidence that Sterling told Pablo that she and
Banuelos had worked concertedly on Sterling’s notes towards a potential
EEOC charge. To the contrary, after mentioning that she had shared her
concerns with Banuelos, Sterling told Pablo that she wanted to keep the
matter confidential. (Sterling said the same thing to Kercher in their sec-
ond meeting.)
Next, Sterling called the Respondent’s hotline and said that Thario
was sexually harassing her. There is no evidence she mentioned Banue-
los. Finally, Sterling filed the EEOC charge by herself, for herself.
Contrary to the judge and the majority, Sterling’s activities by herself,
for herself, do not constitute concerted activities for the purpose of mu-
tual aid or protection.
35 The email, which is contained in the record as General Counsel’s
Exhibit 14, is from Pablo to Thario, copying Martini and Kercher.
Pablo’s email was preceded by an earlier email from Thario to Pablo,
which is also shown in General Counsel’s Exhibit 14. Both emails are
dated July 15, 2010. Thario’s email has no connection with sexual har-
assment allegations. In it, Thario assures Pablo that if he were permitted
to rehire two individuals, he would make sure they promptly enroll in
weapons class. (One of the two individuals was Banuelos; I am unable
to determine when she left the Respondent’s employ.) Pablo responded:
“OK, inform them both that they will be reassigned back to the Light
Rail [i.e., East Valley Metro Rail]. Also, while I’m doing my investiga-
tions with the Hotline complaints submitted by both Sterling and Banue-
los, please ensure they do not work the same shifts.” Thus, Martini—
who was copied on both emails—would know from Pablo’s email that
Sterling and Banuelos had each submitted a hotline complaint. However,
Pablo’s email did not inform Martini of the subject of those hotline com-
plaints. And even if Martini knew what the complaints were about—
there is no evidence that he did know—Pablo’s email did not inform
Martini that Sterling and Banuelos had spoken with each other about
Thario’s behavior. And specifically, Martini was not informed by
Pablo’s email that Sterling and Banuelos had collaborated on Sterling’s
notes for an EEOC charge. Indeed, as discussed above, there is no evi-
dence that Pablo was aware of Sterling’s and Banuelos’ collaboration on
those notes.
G4S SECURE SOLUTIONS (USA) INC. 19
to sue” letter by the Legal Department. As stated above
(supra fn. 28), Sterling filed the EEOC charge by herself,
for herself. But even assuming that the filing of the EEOC
charge was concerted activity,36 the General Counsel must
prove that the Respondent knew it was concerted,37 and
there is no evidence that anyone in the Respondent’s su-
pervisory or managerial ranks knew that the filing of the
EEOC charge was concerted. If the filing of the charge
was concerted, the basis of that finding would be that the
charge grew out of Sterling’s and Banuelos’ collaboration
on Sterling’s pre-charge notes. See supra fn. 36. Accord-
ingly, to establish that the Respondent was aware of the
concerted nature of the EEOC charge filing (assuming that
act was concerted), the General Counsel would have to
show that Sterling or Banuelos disclosed to some supervi-
sor or manager the fact that would make the filing of the
charge concerted (assuming it was)—namely, that Ster-
ling and Banuelos had collaborated on Sterling’s pre-
charge notes. As explained above, however, there is no
evidence that Sterling disclosed to any manager or super-
visor that she and Banuelos had worked together concert-
edly on Sterling’s notes for a potential EEOC charge, see
supra fn. 34, and there is also no evidence that Banuelos
disclosed this fact to a manager or supervisor. Based on
what Sterling told Kercher and Pablo, those two managers
would have known that Sterling had spoken to Banuelos
about Thario’s behavior, period. That is insufficient to es-
tablish knowledge of concerted activity without evidence
that Kercher, Pablo, or some other manager or supervisor
knew that Sterling and Banuelos had engaged in more than
“mere talk”—i.e., that they had engaged in talk that
“look[ed] toward group action,” Mushroom Transporta-
tion, supra—or alternatively, that Sterling and Banuelos
had actually undertaken group action by collaborating in
the drafting of Sterling’s pre-charge notes. There is no
such evidence.
Fourth, while there is abundant evidence that the Re-
spondent harbored animus toward the security officers’
union activities, there is no evidence that the Union ever
came up in connection with Sterling’s discussions with
Banuelos regarding Thario, and there is no evidence that
the Respondent was hostile to protected concerted activi-
ties other than union activities.
Fifth, several months elapsed from the time Sterling col-
laborated with Banuelos on notes for a potential EEOC
charge (June 2010) until the time she was disciplined (No-
vember 2010). That lapse of time further undermines any

36 Although Sterling filed the EEOC charge individually, an argument
could be made that the filing of the charge was nonetheless concerted
activity on the basis that it grew out of the shared concerns of Sterling
and Banuelos about Thario’s conduct and their resulting collaboration on
Sterling’s notes for an EEOC charge. See, e.g., Mike Yurosek & Son,
Inc., 306 NLRB 1037, 1038 (1992) (“We will find that individual action
is concerted where the evidence supports a finding that the concerns ex-
pressed by the individual are [the] logical outgrowth of the concerns ex-
pressed by the group.”) I express no views as to whether the filing by
Sterling of her EEOC charge was or was not concerted activity. As I
possible inference of a connection between Sterling’s pro-
tected concerted activity and her discipline. My col-
leagues say that the Respondent’s receipt of a copy of
Sterling’s “right to sue” letter from the EEOC on Novem-
ber 1 bridged the temporal gap. Preliminarily, there is no
evidence that either Martini or Armstrong—who were in-
volved in Sterling’s discipline—was aware of the “right to
sue” letter. But even assuming Sterling’s discipline was
motivated in part by the Respondent’s discovery or re-
minder that Sterling had filed an EEOC charge, again,
Sterling filed that charge by herself, for herself, and there
is no evidence that any manager or supervisor was aware
of what made the filing of the charge concerted activity
(assuming for argument’s sake that it was)—namely, Ster-
ling’s and Banuelos’ prior collaboration in preparing Ster-
ling’s pre-charge notes.
Finally, I believe the judge’s rationale, upon which my
colleagues rely, does not withstand scrutiny. The judge
cited evidence that a few employees were treated differ-
ently than Sterling for a first-time no-call/no-show. De-
pending on the circumstances of the particular case, dis-
parate treatment may be probative of an unlawful motive.
But it also may result from perfectly innocent sources,
such as the heat of the moment, haste, and carelessness.
That appears to have been the case here. On November
10, the day after Sterling’s no-call/no-show, Armstrong
ordered Eggleston to give Sterling a final warning. Arm-
strong’s haste is best explained by the fact that Martini—
Armstrong’s superior—wanted to discharge Sterling im-
mediately. Armstrong also apparently issued the final
warning without consulting with Human Resources Man-
ager Kercher. Once Kercher became involved, the disci-
pline was reduced to an oral warning.
Additionally, the judge relied on the Respondent’s fail-
ure to present evidence “as to why Martini would be mad
at [Sterling] other than for her protected concerted activ-
ity.” But we are talking here about the General Counsel’s
initial case under Wright Line, and the Respondent had no
burden to present any such evidence. Moreover, there is
no evidence that on November 10, either Martini or Arm-
strong knew why Sterling had not shown up on November
9—i.e., because she believed her overtime shift had been
canceled. So far as the evidence shows, there is every rea-
son to think that at the time Martini told Armstrong that
he wanted Sterling discharged, Martini reasonably be-
lieved that Sterling had been no-call/no-show on Novem-
explain in the text, even if that act was concerted, none of the Respond-
ent’s managers or supervisors were aware of what made it concerted (as-
suming it was)—namely, Sterling’s and Banuelos’ prior collaboration on
the pre-charge notes.
37 “Once the activity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the concerted nature of the
employee’s activity, the concerted activity was protected by the Act, and
the adverse employment action at issue (e.g., discharge) was motivated
by the employee’s protected concerted activity.” Meyers I, 268 NLRB
at 497 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ber 9. That in itself would reasonably account for Mar-
tini’s anger. Moreover, even assuming Martini reacted the
way he did because he knew about Sterling’s EEOC
charge and was angry that Sterling had filed it, (i) Sterling
filed that charge by herself, for herself; and (ii) even as-
suming the EEOC charge was concerted activity on the
basis that it grew out of Sterling’s earlier collaboration
with Banuelos on the pre-charge notes, there is no evi-
dence—as explained above—that either Martini, Arm-
strong, Kercher or any other manager or supervisor knew
about that collaboration, and thus there is no evidence that
the Respondent was aware of the concerted nature of the
EEOC charge filing (assuming it was concerted).
In sum, I would find that the General Counsel failed to
prove that Sterling’s protected concerted activity was a
motivating factor in the discipline she received, and I
would dismiss the allegation that the Respondent violated
Section 8(a)(1) when it disciplined Sterling.
3. The remaining unfair labor practice allegations
For the reasons stated by the judge and my colleagues,
I agree that the Respondent violated Section 8(a)(1) of the
Act when it threatened Banuelos that at the expiration of
the Respondent’s contract with East Valley Metro Light
Rail, the Respondent would not rehire anyone who was in
favor of the Union.38 For the same reasons, I also agree
that the Respondent violated Section 8(a)(1) of the Act
when it instructed employee Donald Wickham, under
threat of discipline, not to talk to Lieutenant Danny Rice,
who was suspended and demoted for engaging in union
activity. And I agree, for the reasons stated by my col-
leagues, that the Respondent violated Section 8(a)(1) of
the Act when Lieutenant Clemons told a group of employ-
ees that the Union should not be discussed at work,39 and
also when Clemons told Taresh to be careful talking about
the Union because it should not be discussed at work. Fur-
ther, I join my colleagues in adopting the judge’s dismissal
of the allegation that the Respondent violated Section
8(a)(1) by promulgating or reinforcing an overbroad con-
fidentiality rule during Wickham’s unemployment com-
pensation hearing. Finally, I agree with my colleagues,
for the reasons they state, that the Respondent did not vi-
olate Section 8(a)(1) when supervisor Armstrong told
Sterling that he had an “issue” with her because she had

38 The judge additionally found that the statement made to Banuelos
created the impression of surveillance. I find it unnecessary to reach or
pass on this finding. Since I have found that the Respondent, by super-
visor Armstrong, created the impression that employee Nagler’s union
activities were under surveillance, an additional finding of the same type
of violation with regard to employee Banuelos would be cumulative, i.e.,
it would not affect the remedy.
39 See supra fn. 4. The Respondent maintains a rule in its Security
Officer Handbook stating that security officers must “[e]ngage in no un-
necessary conversations.” The judge found that when Clemons told em-
ployees that the Union should not be discussed at work, he was applying
the “no unnecessary conversations” rule to restrict the exercise of em-
ployees’ Sec. 7 rights, and the judge therefore concluded that the “no
“called off sick” on three occasions when she had been
scheduled to work overtime.
CONCLUSION
Accordingly, as to the issues and for the reasons dis-
cussed above, I respectfully dissent in part from my col-
leagues’ decision, and I concur in part with other aspects
of their decision.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain in employee handbooks or pol-
icy statements rules that prohibit employees from: (i)
wearing “insignia, emblems, buttons, or items other than
those issued by the company” without permission; (ii) dis-
cussing “wages and salary information”; (iii) commenting
on “work related matters without express permission of
the Legal Department”; (iv) “giv[ing] or mak[ing] public
statements about the activities or policies of the company”
without written permission; and (v) placing on any social
networking site without express permission any “photo-
graphs, images, and videos of G4S employees in uniform
unnecessary conversations” rule was unlawful under prong three of the
Lutheran Heritage standard. See 343 NLRB at 647 (stating that a rule is
unlawful if it “has been applied to restrict the exercise of Section 7
rights”). I agree with my colleagues that the judge erred in this regard.
As my colleagues state, there is no credited evidence that Clemons men-
tioned the “no unnecessary conversations” rule or otherwise indicated
that the rule prohibited employees from speaking about the Union at
work. Finally, there is no issue before the Board as to whether the Re-
spondent’s “no unnecessary conversations” rule is unlawful on the basis
that employees would “reasonably construe” the rule to prohibit Sec. 7
activity. (If there were, I would decide it under the balancing test that I
described in William Beaumont Hospital, supra).
G4S SECURE SOLUTIONS (USA) INC. 21
(whether yourself or a colleague) or at a G4S place of
work.”
WE WILL NOT instruct employees, under threat of dis-
charge, not to talk to employees or supervisors about dis-
ciplinary matters.
WE WILL NOT create the impression that we are engaged
in surveillance of our employees’ union or other protected
concerted activities.
WE WILL NOT threaten employees with job loss for en-
gaging in union or other protected concerted activity.
WE WILL NOT discipline employees for engaging in un-
ion or other protected concerted activity.
WE WILL NOT discharge employees for engaging in un-
ion or other protected concerted activity.
WE WILL NOT prohibit employees from talking about the
Union while allowing other nonwork related discussions
by employees.
WE WILL NOT threaten employees with unspecified re-
prisal for talking about the Union at work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawful rules that prohibit em-
ployees from (i) wearing “insignia, emblems, buttons, or
items other than those issued by the company” without
permission; (ii) discussing “wages and salary infor-
mation”; (iii) commenting on “work related matters with-
out express permission of the Legal Department”; (iv)
“giv[ing] or mak[ing] public statements about the activi-
ties or policies of the company” without written permis-
sion; and (v) placing on any social networking site without
express permission any “photographs, images, and videos
of G4S employees in uniform (whether yourself or a col-
league) or at a G4S place of work.”
WE WILL furnish all employees nationwide with inserts
for the current employee handbook and Social Network-
ing Policy that (1) advise that the unlawful rules have been
rescinded, or (2) provide the language of lawful rules; or
publish and distribute to all employees nationwide a re-
vised handbook and Social Networking Policy that (1) do
not contain the unlawful rules, or (2) provide the language
of lawful rules.
WE WILL within 14 days from the date of this Order, of-
fer employee Donald Wickham full reinstatement to his
former job or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make whole employee Donald Wickham for
any loss of earnings and other benefits suffered as a result
of the discrimination against him in the manner set forth
in the amended remedy section of this decision, plus rea-
sonable search-for-work and interim employment ex-
penses.
WE WILL compensate Donald Wickham for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar years.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful disci-
pline and discharge of employee Donald Wickham and
within 3 days thereafter, notify him in writing that this has
been done and that the unlawful actions will not be used
against him in any way.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful disci-
pline of employee Debra Sterling and within 3 days there-
after, notify her in writing that this has been done and that
the unlawful actions will not be used against her in any
way.
G4S SECURE SOLUTIONS (USA) INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-023380 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, SE, Washington, D.C.
20570, or by calling (202) 273–1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
APPENDIX B
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain in employee handbooks or pol-
icy statements rules that prohibit employees from (i) wear-
ing “insignia, emblems, buttons, or items other than those
issued by the company” without permission; (ii) discuss-
ing “wages and salary information”; (iii) commenting on
“work related matters without express permission of the
Legal Department”; (iv) “giv[ing] or mak[ing] public
statements about the activities or policies of the company”
without written permission; and (v) placing on any social
networking site without express permission any “photo-
graphs, images, and videos of G4S employees in uniform
(whether yourself or a colleague) or at a G4S place of
work.”
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawful rules that prohibit em-
ployees from (i) wearing “insignia, emblems, buttons, or
items other than those issued by the company” without
permission; (ii) discussing “wages and salary infor-
mation”; (iii) commenting on “work related matters with-
out express permission of the Legal Department”; (iv)
“giv[ing] or mak[ing] public statements about the activi-
ties or policies of the company” without written permis-
sion; and (v) placing on any social networking site without
express permission any “photographs, images, and videos
of G4S employees in uniform (whether yourself or a col-
league) or at a G4S place of work.”
WE WILL furnish all employees nationwide with inserts
for the current employee handbook and Social Network-
ing Policy that (1) advise that the unlawful rules have been
rescinded, or (2) provide the language of lawful rules; or
publish and distribute to all employees nationwide a re-
vised handbook and Social Networking Policy that (1) do
not contain the unlawful rules, or (2) provide the language
of lawful rules.
G4S SECURE SOLUTIONS (USA) INC
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-023380 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, SE, Washington, D.C.
20570, or by calling (202) 273–1940.
Sandra L. Lyons, Esq. and Christopher Doyle, Esq., for the Gen-
eral Counsel.
John D. McLachan, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Phoenix, Arizona, on October 18–20, 2011. The Interna-
tional Union, Security, Police and Fire Professionals of Ameri-
can (SPFPA or the Union) filed the charge in February 24, 2011.
The General Counsel issued a complaint and notice of hearing
on April 29, 2011. Respondent filed a timely answer on May 13,
2011, denying all material allegations in the complaint.
The complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by (1)
maintaining and promulgating an overly-broad confidentiality
rule; (2) maintaining and promulgating a rule that employees
must engage in no unnecessary conversations; (3) maintaining
and promulgating a rule that prohibits employees from talking
about their discipline; (4) maintaining and promulgating a rule
prohibiting employees from discussing the Union; (5) threaten-
ing employees with unspecified reprisals for speaking about the
Union; (6) threatening employees with unspecified reprisals for
union and other protected concerted activities; (7) creating the
impression that union activities were under surveillance; (8)
threatening to not re-hire employees who supported the Union;
and (9) disciplining employee Debra Sterling for her protected
concerted activities. The complaint alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by: (1) transferring em-
ployee Donald Rice to a different location and isolating him; and
(2) suspending and subsequently discharging employee Donald
Wickham. At the hearing, the General Counsel moved to amend
the complaint to include an allegation that Respondent violated
the Act by maintaining an overly-broad social networking pol-
icy. I granted the motion to amend because the allegation is
closely related to the allegations in the charge and the original
complaint, Payless Drug Stores, 313 NLRB 1220, 1221 (1994).
On the entire record, including my observation of the wit-
nesses’ demeanor, and after considering the General Counsel and
Respondent’s briefs, I make the following
G4S SECURE SOLUTIONS (USA) INC. 23
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Florida corporation, with places of business
throughout the country, including the Phoenix, Arizona area,
provides security services to clients in a variety of industries.
During the past 12 months and at all material times it derived
gross revenues in excess of $500,000 and purchased and re-
ceived goods valued in excess of $50,000 directly from points
outside the State of Arizona. Respondent admits, and I find, that
Respondent is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I further find, and it is uncon-
tested, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. FACTS
A. Background and Respondent’s Operations
Respondent provides security services throughout the coun-
try.1 On a national level, its services include permanent manned
security (both armed and unarmed), disaster response and emer-
gency services, control room monitoring, special event security,
security patrols, reception/concierge service, emergency medical
technician (EMT) service, ambassador service, and transporta-
tion service. (GC Exh. 2; Tr. 34–35.)2
Larry Pablo is the general manager of Respondent’s Phoenix
area office, and has held that position since June 2008. In this
capacity, he oversees roughly 60–65 individual jobsites. His du-
ties include oversight of existing accounts, as well as acquisition
of new clients. Pablo’s direct reports are the operations manager,
human resources manager, manager of business development,
and training manager. Pablo is also second or third-line supervi-
sor to many other managers and supervisors. (Tr. 22–23.) Re-
spondent’s clients in the Phoenix area are varied. For example,
Respondent provides control room monitoring for the Bank of
America and Target headquarters buildings. Respondent also
provides security services for Cricket retail stores and U.S. Im-
migration and Customs Enforcement (ICE), among other clients.
(Tr. 25–26, 31–33.)
1. The Metro Light Rail
Many of the issues in this case involve Respondent’s contracts
with the city of Tempe and the East Valley Metro Light Rail
(Metro Light Rail), a mass transit system that runs from Mesa to
Phoenix. Under these contracts, Respondent provides security
services, detailed more thoroughly below, for the parts of the
Metro Light Rail that lie within the cities of Mesa and Tempe.
(Tr. 37–38.) To ride the Metro Light Rail, passengers purchase
tickets from machines on platforms at the various stops. Unless
a security officer is checking to see if passengers have tickets,
there is no mechanism to prevent a passenger from boarding the
train without a ticket. (Tr. 324.)
There are three park & rides, referred to as “kiosks,” that Re-
spondent’s Metro Light Rail contract services. They are at (1)
Sycamore and Main in Mesa; (2) McClintock and Apache in

1 Respondent was previously called Wackenhut, and some documents
in the record refer to this prior name.
2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R.” for Respondent’s exhibit; “GC” for General Counsel’s ex-
hibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for Re-
spondent’s brief.
Tempe (McClintock kiosk); and (3) Apache and the 101 Price
Freeway in Tempe (Price & Apache kiosk). Employees report to
work and sign in at the McClintock kiosk, which is located
within a parking garage.
A project manager, assigned the rank of major, oversees secu-
rity for the Metro Light Rail. The project manager, who reports
to the operations manager, ensures proper scheduling and main-
tains a relationship with the client to make sure the client’s needs
are being met.3 The project manager directly supervises three
shift supervisors who are referred to as lieutenants. (Tr. 290.)
Lieutenants oversee the jobsites in the project manager’s ab-
sence, and they directly supervise the security officers. They can
take disciplinary actions, other than suspensions and termina-
tions, against their subordinate officers. There is generally one
lieutenant per shift. (Tr. 44–45, 311–313.) There are three shifts:
day, swing, and night. (Tr. 24.)
During the time period at issue, security officers could work
one of four assignments, with some overlap among them: patrol
officer, fare inspector, kiosk officer, or passenger assistant agent
(PAA).4 Patrol officers ride in vehicles along the rail routes to
ensure safety and security. They also monitor electrical boxes to
make sure nobody has tampered with them. Fare inspectors ride
on the trains to ensure passengers have paid. If an individual who
has not paid his or her fare is riding the light rail, fare inspectors
issue citations but do not collect fines.5 If a passenger refuses to
get off the light rail, the officers are to call the police. They can
only forcibly remove a passenger if he or she is threatening phys-
ical harm. Until the fall of 2011, kiosk officers staffed each of
the kiosks. They were responsible for patrolling the park-n-ride,
and monitoring the cameras in the kiosks. During the relevant
time period, they were expected to be on the platform once an
hour, for roughly 3 hours of a 10-hour shift. (Tr. 44–45, 294,
302–308.) Passenger assistant agents (PAAs) work in the control
room at the McClintock kiosk. They do no have contact with
passengers or other members of the general public. (Tr. 36–37,
423.) All of the security officers on the Metro Light Rail are un-
armed, and they do not have arrest authority. (Tr. 44–45, 308.)
2. Security officer uniforms
Metro Light Rail officers are uniformed. The uniform require-
ment originated from the city of Tempe’s June 10, 2008 Request
for Proposal (RFP) for security services. Officers wear white
button-down shirts with name tags and arm patches identifying
them as Metro security, East Valley Sector. They wear dark
pants with a duty belt to hold pepper spray, handcuffs, and ra-
dios. They also wear hats with pins depicting the Metro Light
Rail logo, and black shoes. Majors wear gold leaf pins, roughly
the size of a quarter, on their shirt lapels. (Tr. 310.) The RFP
directs that an individual wearing anything other than the items
specified in therein will be considered out of uniform and subject
to disciplinary action. (Tr. 71–73; GC Exhs. 10–12; R. Exh. 1.)
According to Pablo, permission from Respondent’s corporate of-
fice is required if employees want to wear pins or other insignia
that are not part of a prescribed uniform. (Tr. 75.)
3 The project manager was Robert Thario until his termination in Au-
gust 2010. The position was vacant until Jason Armstrong assumed it in
October 2010.
4 The PAA qualification requirements are not as stringent as those for
other security officers. (Tr. 39.) As of late September/early October
2011, there are no longer kiosk officers because the customer wanted
more officers riding the rails to do fare inspection. (Tr. 293.)
5 Fare inspectors issue about 100–120 citations per month. (Tr. 329.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
3. National corporate hotline
Respondent maintains a national hotline system that allows
employees to call a centralized 800 number to voice workplace
complaints. The hotline employees receive the complaint, and
then forward it to the appropriate general manager for resolution,
as long as the general manager is not named in the complaint.
The general manager or his/her designee investigates the allega-
tions in the complaint, and reports his/her findings back to the
referring hotline employee. Corporate headquarters, through the
hotline staff, determines the final resolution of the complaint and
conveys it to the complaining party and local management. An
employee may make an anonymous complaint, or ask that a com-
plaint remain confidential. (Tr. 120–122; GC Exh. 32.)
4. Disciplinary system and offenses that are grounds
for immediate termination
Respondent utilizes a progressive discipline system. Its policy
manual, standards of employee behavior (Behavior Standards
Manual) applies to all employees, and describes the forms of dis-
cipline Respondent uses in progressive order: (1) oral reprimand,
(2) written reprimand, (3) suspension, and (4) dismissal. The dis-
cipline system is reiterated in the security officer handbook, dis-
cussed more fully below. (GC Exhs. 7, 15.) Employees in the
Phoenix area sometimes receive a “final warning” but this is not
listed in the manual. (Tr. 65.)
Respondent’s Behavior Standards Manual sets for the follow-
ing noncomprehensive bullet-point list of infractions that are
grounds for immediate dismissal:
 Refusal to work
 Extreme insubordination
 Fighting on the job
 Intoxication on the job or reporting to work un an in-
toxicated state (this applies to alcohol, drugs, nar-
cotics, or any substance which alters percep-
tion/awareness and which inhibits normal human
response)
 Theft
 Willful destruction of client and/or G4S Secure Solu-
tions (USA) property
 Unauthorized or careless use of firearms or other
weapons
 Malicious harassment of fellow employees, client em-
ployees, or members of the public
 “Horseplay” or any other activity with potentially se-
rious consequences such as personal injury or prop-
erty damage
 Any other acts which, by their nature and impact, se-
verely limit the employee’s ability to perform the
essential elements of the job
(GC Exh. 7.) The security officer handbook sets forth a more
comprehensive numbered list of prohibited conduct that may re-
sult in immediate dismissal, including but not limited to:
1. Refusal to work
2. Insubordination or other disrespectful conduct
3. Fighting or provoking a fight during working hours or
on client or company property

6 In addition to rules and policies that apply companywide, the Metro
Light Rail employees also have so-called “Post Orders” that set forth
their specific duties and responsibilities. (GC Exh. 9.)
4. Intoxication on the job or reporting to work in an im-
paired state (This applies to alcohol, drugs or any
substance that alters perception or awareness and
that inhibits normal human response.)
5. Theft, dishonesty, fraud or bribery
6. Removing or borrowing client or company property
without prior authorization
7. Willful or reckless destruction of client or company
property
8. Unauthorized or careless use of firearms or other
weapons
9. Malicious harassment (including sexual or racial) of
fellow employees, client employees or members of
the public
10. Horseplay or other activity with potentially serious
consequences such as personal injury or property
damage
11. Unexcused no call, no show absence(s)
12. Job performance that is unacceptable
13. Conviction of or pleading guilty to any criminal act
or engaging in criminal conduct
14. Falsification or fraudulent alteration of any com-
pany or client-provided document or record
15. Sleeping or gross inattentiveness while on duty
16. Failure to report immediately an arrest or conviction
to your supervisor
17. Aiding a competitor or any other act that intends to
inflict injury on the company or our clients
18. Unauthorized absence from assigned work area
19. Unauthorized use of telephone, cell phone, mail sys-
tem, computer or other company or client-provided
equipment
20. Any other acts which, by their nature and impact,
severely limit the employee’s ability to perform the
essential elements of the job
21. Any other reason that the company feels, in its sole
discretion, warrants termination
(GC Exh. 16, p. 32 of handbook.) Pablo makes all termination
and suspension decisions for the Phoenix area office. (Tr. 60–
61.)
B. Rules and Policies
1. Security officer handbook
Respondent maintains a security officer handbook (handbook)
that is distributed to its security officers nationwide.6 (GC Exh.
15.) Each security officer receives a handbook upon starting
work. The handbook was most recently revised in January 2011.7
Each time it is revised, officers must sign to indicate they re-
ceived a copy of revised version. (Tr. 134–136.)
a. Professional image handbook provision
On pages 26–27, the handbook sets forth its “Professional Im-
age” rule, in pertinent part, as follows:
Professional Image
You must be neat and clean while on duty. You must wear only
the complete uniform as prescribed by your supervisor. Any
uniformed security personnel who become pregnant will be
7 A copy of the March 2008 version of the handbook appears at GC
Exh. 16.
G4S SECURE SOLUTIONS (USA) INC. 25
provided with appropriate uniform clothing to maintain a pro-
fessional appearance. The area or branch office will be respon-
sible for acquiring maternity pants and larger shirts through the
Purchasing Department.
Due to the public nature of our business and the business ne-
cessity that uniformed personnel represent figures of authority,
we have established the following rules for personal appear-
ance.
. . .
 No insignias, emblems, buttons, or items other than
those issued by the company may be worn on the uni-
form without expressed permission.
(GC Exh. 15.)
Robert Inman is the business agent for the International Union
Security Police and Fire (SPFPA), Locals 822, 827, 829, and
830. The SPFPA represents security guards at various facilities.
Security guards at the Palos Verde Nuclear Facility in Tonopah,
Arizona, wear a union patch that has a diameter of 3 inches. (Tr.
447; GC Exh. 53.) Inman has not received reports that the public
failed to show respect or follow the directives of these security
guards because of the union patch. (Tr. 447.) Security guards at
other facilities wear union pins that are approximately 1 by 1
inch. (GC Exh. 52.) The type of pin or patch the guards wear is
a matter negotiated between the companies and the Union. In-
man believed that some of the companies where union members
worked did not authorize its employers to wear any pin, patch,
or other union insignia. (Tr. 449–450.)
b. “No Unnecessary Conversations” handbook provision
The handbook contains a provision stating, in relevant part,
that security personnel must “[e]ngage in no unnecessary con-
versations.” (GC Exh. 15.) The provision is on page 29 of the
manual, in a section entitled “Conduct While on Duty,” subsec-
tion “Enforcing Security Rules.” It is part of a bullet-point list
that follows the lead-in phrase “Security personnel must:”. The
list includes a variety of both required and impermissible items.
For example, there are bullet items requiring security officers to
be awake and alert, to perform their assigned duties, and to an-
swer the phone and take messages. In addition to unnecessary
conversations, listed prohibitions include accepting gifts or gra-
tuities, using equipment for unauthorized purposes, borrowing
money from coworkers, arguing controversial subjects, and re-
moving, rearranging, or reading materials left on desks or cabi-
nets. (GC Exh. 15.)
c. Handbook confidentiality provision
Page 31 of the handbook depicts the confidentiality provision
for the security officers. It provides:
CONFIDENTIAL MATERIAL
The protection of confidential information, trade secrets, and
company-specific operating procedures is vital to the interests
and success of G4S Secure Solutions USA. Additionally, in the
line of duty, you may come into contact with our customers’
confidential information.
Employees who improperly use, reveal, copy, disclose or de-
stroy G4S or client information will be subject to disciplinary

8 Banuelos is mistakenly referred to in the transcript as “Vanuelos.”
9 Banuelos filed a complaint with the EEOC toward the end of June,
2010, and a hotline complaint on June 29, 2010. Her hotline complaint
action, up to and including termination of employment. They
may also be subject to legal action even if they do not actually
benefit from the disclosure. Such information includes any in-
formation considered proprietary by G4S or the client organi-
zation.
Do not give interviews or make public statements about the ac-
tivities or policies of the company or our client without written
permission from G4S Secure Solutions USA.
(GC Exh. 15.)
The handbook in place prior to January 2011 specifically in-
cluded “wage and salary information” as an example of confi-
dential material that could not be disclosed. (GC Exh. 16.)
2. Social networking policy
Respondent maintains a social networking policy. The current
version is effective as of November 22, 2010. The contested pro-
visions state:
 Photographs, images and videos of G4S employees in
uniform, (whether yourself or a colleague) or at a G4S
place of work, must not be placed on any social net-
working site, unless express permission has been given
by G4S Secure Solutions (USA) Inc.
 Do not comment on work-related legal matters without
express permission of the Legal Department.
(GC Exh. 13.)
C. Debra Sterling Alleged Protected Concerted
Activity and Discipline
1. Background and protected concerted activity
Debra Sterling has been an officer on the Metro Light Rail
since approximately November 2009. (Tr. 494.) During the
spring and summer of 2010, her direct supervisor was Lieutenant
Danny Rice and the project manager was Major Robert Thario.
In March 2010, Sterling perceived that Thario began talking to
her “very disrespectful with sexual comments.” Examples of his
comments were, “I bet you’re very potent” and a reference to
“deep throat” when Sterling was eating a tootsie-pop. Sterling
also stated that Thario had “smacked her backside” with a roll of
paper. (Tr. 496.)
Asucena Banuelos8 works for Respondent in Anaheim, Cali-
fornia. She was previously assigned to the Metro Light Rail ac-
count, and worked with Sterling on the swing shift at the
McClintock kiosk during the early part of summer 2010. In June
2010, Sterling and Banuelos discussed that they both felt Thario
mistreated them and sexually harassed them. According to Ba-
nuelos, she and Sterling discussed Thario’s treatment of them on
“pretty much” a daily basis. (Tr. 426, 497–498.) Sterling and Ba-
nuelos met for lunch and coffee, and they went over notes Ster-
ling had made to draft a letter to the Equal Employment Oppor-
tunity Commission (EEOC). Banuelos assisted Sterling, encour-
aged her to go to the EEOC and file a hotline complaint, and told
her that she intended to do the same.9 (Tr. 428, 498–500.)
In June 2010, Sterling told Officer Donald Wickham she felt
harassed by Thario. She described sexual innuendos and told
Wickham that Thario had twice shown up to her house unan-
nounced. Wickham encouraged Sterling to call the company hot-
line. (Tr. 385.) Sterling also shared her concerns about Thario
set forth how she felt Thario was mistreating her, and expressed concern
for Sterling. (Tr. 428.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
with Officer Carol Taresh, who encouraged her to get legal coun-
sel and talk to the EEOC. (Tr. 555.)
On June 30, 2010, Sterling visited Human Resources Manager
Janelle Kercher to complain about Thario’s behavior. Sterling
gave Kercher examples of how she believed Thario was sexually
harassing her. Kercher told Sterling she was not the only one
who had problems with Thario, and instructed Sterling to put her
complaints in writing. Later that day, Sterling sent Kercher an
email detailing her problems with Thario. She stated that Thario
had been lewd and disrespectful toward her, and recounted the
comments, set forth above, that he had made. She also referenced
that Thario had “smacked her backside” with a roll of papers and
threatened to fire her without saying why. Sterling reported that
Thario had come to her house uninvited, failed to issue her OC
spray, and treated her poorly after she sustained a dog bite while
on duty. She concluded the email by stating that, while meaning
no disrespect, she felt she must file a complaint with the EEOC.
(Tr. 190–199, 496–500; GC Exh. 30.)
Kercher showed Sterling’s email to Pablo, and instructed Ster-
ling to come to meet with her and Pablo. (Tr. 84–86, 192.) Ster-
ling and Pablo met when he returned from a trip, and she told
Pablo about her problems with Thario. She told him that she had
shared her concerns with Banuelos, but that she wanted to keep
the matter confidential. Pablo told Sterling not to worry and that
her job was safe. He offered to move her to another detail, and
she declined.10 (Tr. 502–503.)
Sterling filed a complaint with Respondent’s hotline on July
9, 2010. She alleged that Thario was sexually harassing her, as
described above. She further stated that she had notified Pablo,
and that no action had been taken. Donna Holder, a manager in
Respondent’s corporate human resources, took the complaint
and referred it to Pablo for investigation. Pablo interviewed
Thario, who denied making the sexual comments or engaging in
any inappropriate behavior. In Pablo’s written response to
Holder, he reported the only thing he could substantiate was that
Sterling had commented to Thario that she wished he wasn’t
married. Pablo further noted that Thario said very positive things
about Sterling’s job performance. He concluded his report with
a final paragraph labeled, “NOTE,” stating that Thario was re-
luctant to discipline Sterling for unauthorized parking in a hand-
icap spot for fear it would be perceived as retaliation. Pablo in-
formed Thario he would discipline Sterling for this infraction.11
(R. Exh. 11.)
The same day Sterling filed her hotline complaint, July 9,
2010, Banuelos met with Pablo about her own hotline complaint.
(Tr. 428–429.) The complaint involved issues with Thario, and
also an issue with Respondent changing its standards to require
greater law enforcement experience for officers on the Metro
Light Rail. In a July 15 email to Pablo, Thario wrote that he had

10 Sterling believes Respondent had investigators follow her after this
meeting. (Tr. 503, 524.) She also believes Clemons hides between cars
and watches her. (Tr. 527.)
11 Sterling apparently was not disciplined for this alleged infraction.
12 At this point, Armstrong was a security officer, not a supervisor or
manager.
13 I do not credit Pablo’s testimony that he could not recall why he
made the decision to separate Sterling and Banuelos. Both women came
to him around the same time period with similar complaints about
Thario. He was evasive during this testimony and seemed focused on
Banuelos’ complaint about the credentials rather than any complaint she
made about Thario. (Tr. 88.)
spoken with Jay Harper from the Metro Light Rail, who said that
even if Respondent enforces a higher standard now, he did not
see why individuals hired under the previous standards should
be penalized, particularly if they were doing a good job. Thario
concluded by stating if he could rehire Banuelos and Officer Ja-
son Armstrong, he would ensure they were in weapons class by
the end of the month.12 Pablo responded the same day, stating
that Banuelos and Armstrong could be assigned back to the light
rail, and instructing Thario to have Banuelos and Sterling work
different shifts pending his investigation into the hotline com-
plaints each had filed.13 (GC Exh. 14.) Banuelos was assigned to
a different shift than Sterling, and did not work the same shift as
her thereafter. (Tr. 428–431.)
Also on July 15, 2010, Sterling filed a charge with the
EEOC.14 (R. Exh. 14.) A week later, on July 22, she sent Kercher
a second email expressing her dismay about Pablo’s investiga-
tion.15 She stated that she was willing to keep the matter confi-
dential, and explained that the only reason “Susie B”16 knew
about it was because she had encountered her during a vulnerable
moment. Sterling expressed her belief that she was being fol-
lowed around, and that “they” were trying to fire her. She con-
cluded by stating that she had filed an EEOC complaint. (GC
Exh. 31.)
During the July/August 2010 time period, Officer Carol
Taresh began having problems with Thario. She testified that he
would come behind her and rub her shoulders, and he made some
comments she perceived as inappropriate. Taresh initially
brought her complaints to Kercher, who told her to keep her ap-
prised of any new incidents. (Tr. 555–556.) In the second or third
week of August 2010, Rice accidentally left the McClintock ki-
osk with his work cell phone. He called Thario, who was super-
vising that night, and told him he was on his way back with it.
Taresh answered the phone, and conveyed the message to
Thario. He responded, “He must’ve felt the bulge in his pocket
and realized it wasn’t from being happy.” She wrote a memo on
August 20, 2010, recounting this comment and other perceived
inappropriate behavior, gave it to Rice, who in turn informed
Pablo. (Tr. 455–456, 556–557; GC Exh. 55.) Thario was subse-
quently terminated. (Tr. 558, 580.) The project manager position
was vacant for a couple of months until Jason Armstrong as-
sumed it in October 2010. (Tr. 289–290.)
2. Discipline
Sterling was scheduled to work overtime as a fare inspector
on November 9, 2010. A few days before, Lieutenant Timothy
Eggleston apologized and told her that he had to cancel all the
overtime and redistribute it to part-time employees. The dry-
erase board said all overtime was canceled, and Sterling’s name
did not appear on the typed schedule for November 9.17 (Tr. 460,
508–509.) Sterling did not show for work on November 9.
14 The EEOC issued a “right to sue” letter to Sterling, informing her
that, after investigation, they were unable to conclude that the infor-
mation submitted established a violation of the statues they enforce. Ster-
ling filed a suit in U.S. District Court that was still pending at the time of
hearing. (Tr. 273; R. Exh. 15.)
15 The email is a rant of sorts, and touches on many topics, in a con-
fusing manner, which are not directly relevant here.
16 This is an obvious reference to Susie Banuelos. (Tr. 194.)
17 Respondent contends that it was Eggleston’s view that overtime had
been canceled only for patrol officers and not for fare inspectors. Re-
spondent cites to a portion of Kercher’s testimony to support this conten-
tion, and Kercher’s testimony does not purport to rely on what Eggleston
G4S SECURE SOLUTIONS (USA) INC. 27
The next day, Major Armstrong told Sterling that Operations
Manager Ed Martini had wanted to fire her for missing her shift,
but he had talked him out of it. Instead, at Armstrong’s direction,
Lieutenant Eggleston issued Sterling a final warning. (Tr. 509–
510; R. Exh. 12.) Sterling had no prior discipline. (Tr. 210.)
Sterling looked at the schedule and saw that her name had been
penciled in for November 9. (Tr. 511.) She met with Kercher to
explain what had happened, and, though the testimony concern-
ing the precise chain of events is somewhat confused, Kercher
investigated the complaint. (Tr. 213–214, 217.) Sterling con-
tacted the company hotline, and spoke with Holder on December
2, 2010, alleging that the discipline was retaliation for her prior
sexual harassment complaint. (Tr. 512–513; R. Exh. 12.)
Kercher met with Sterling after receiving the hotline com-
plaint. Sterling told Kercher she had signed up for overtime on
November 9, but thought it had been canceled. Kercher met with
Lieutenants Rice, Eggleston, and Nick Dotter, Operations Man-
ager Martini, and Major Armstrong. Armstrong stated the disci-
pline was written as a final warning because Sterling was a no-
call/no-show and it cost hours on the contract. Eggleston stated
that he acted under Armstrong’s direction. Rice told Kercher that
there was a note on the whiteboard where overtime was posted
that all overtime was canceled, and the names of the employees
who had signed up for overtime were erased. (Tr. 460–462.)
Kercher initially reduced the final warning to a written warning
on December 9, 2010 (Tr. 213). She changed the discipline to an
oral warning on December 17, based on her determination that
there had been a misunderstanding. Kercher noted in a December
14 “Memo to File” that Sterling never misses work and is always
on time, and therefore a final warning was not justified. (Tr. 316–
318; GC Exhs. 34–35; R. Exh. 12.) According to Kercher, Ster-
ling conceded that some type of discipline was appropriate, and
she was satisfied with the oral warning. (Tr. 247.) Sterling testi-
fied that she did not agree to an oral warning. She believed she
should not have been written up at all. (Tr. 516.)
Juan Castro received an oral warning on March 10, 2010, for
an unexcused absence, and a written warning on September 22,
2010, for another unexcused absence. (GC Exh. 36.) On April
10, 2010, Keegan McManus received a discipline with the boxes
for both oral and written warnings checked for an unexcused ab-
sence. (GC Exh. 37.) Carlton Snead received a final warning on
April 14, 2010, after failing to call or show for work the prior 3
consecutive days (GC Exh. 38).18
D. The Union Organizing Campaign
During the summer of 2010, Sterling talked to Lieutenant Rice
and Officers Banuelos, Wickham, and Taresh about bringing in
a union because she felt the office was “out of control.” In Octo-
ber 2010, Sterling told Wickham that he would be a great choice
to start communications with a union. (Tr. 516–518.)
In early October 2010, Wickham called the Union and spoke
with Mary Mulvaney. She sent him signup cards, newsletters,
and information packets. Wickham received a box of material at
his house in early November. He put the box in his truck, took it
to work, and distributed the union material to coworkers at the
three kiosks.19 Rice saw the union materials on the counter at the
McClintock kiosk and told Wickham they could not stay there.

told her. (R. Br. 14, citing to Tr. 209.). Eggleston testified, but was not
asked about Sterling’s discipline.
18 Christopher Schemer was not disciplined for failing to show up for
a shift, but he did receive progressive discipline, starting with an oral
Rice took the remaining materials, put them in his car, and told
Wickham to take them home after his shift. (Tr. 382–384, 465.)
Wickham’s main contact at the Union was Duane Phillips. Wick-
ham and Phillips talked roughly once a week, often to have Phil-
lips answer questions officers had posed to Wickham about the
Union. (Tr. 390–391.) The officers used the code name “Mickey
Mouse Club” when referring to the Union. They tried to keep the
organizing campaign confidential, and spoke of the Union in the
hypothetical. (Tr. 482, 558–560.)
Gilberto Robles, a security officer working on the Metro Light
Rail, recalled that union discussions started around November
2010. He recalled discussions with Wickham and Rice in the
parking structure outside the McClintock kiosk. These usually
took place during breaktime. (Tr. 364–365.) Robles did not talk
about the Union with others because Rice and Wickham had cau-
tioned him against it. (Tr. 377.) Banuelos also first heard about
the union campaign in November 2010. (Tr. 430.)
Sean Nagler, who worked as a security officer on the Metro
Light Rail from May 2010 through January 2011, recalled dis-
cussing the Union with coworkers in November 2010.20 He
learned of the organizing campaign when Wickham sent him a
text asking him if he wanted to join the Union. Nagler recalled
discussing the Union with Armstrong in mid-December 2010 at
the McClintock kiosk. According to Nagler, Armstrong said, “I
know you’ve been talking to several officers about joining a un-
ion.” Nagler responded, “I talked to several officers, yes, and
I had put a bug in their ear if they would like to join a union,
here’s the person you need to speak to.” (Tr. 542–545.) Arm-
strong replied that he could not join the Union in his position,
but he had nothing against it. (Tr. 547–548.)
Carol Taresh worked for Respondent on the Metro Light Rail
from January 2010 through February 2011. She voluntarily re-
signed, and currently works for another company. She recalled
discussions of the Union started in March or April 2010, and
generally occurred outside the McClintock kiosk. The discus-
sions waned, and then began again in August or September 2010.
(Tr. 550.) In the fall of 2010, she discussed the Union with Rice,
Sterling, Wickham, and Officer Brett McAlister outside the
McClintock kiosk. (Tr. 549–551.) In November 2010, there was
a discussion of the Union at the McClintock kiosk with Lieuten-
ants Clemons and Rice, and Officers Joe Shipp, Taresh, and Ster-
ling. According to Taresh, Clemons said he would take some lit-
erature, but the Union shouldn’t be discussed at work. (Tr. 551–
552.) The following week, Clemons cautioned Taresh to be care-
ful who she talked to about the Union, and where she did it, be-
cause it shouldn’t be discussed at work. (Tr. 552.) Clemons re-
called that he told employees not to discuss the Union in the ki-
osk, because that was his office and he could not be privy to these
discussions. He denied that he otherwise instructed anyone not
to discuss the Union. (Tr. 572.)
Rice spoke to the other supervisors about the Union. Lieuten-
ant Tim Taylor asked Rice about the Union in October 2010.
Rice informed Eggleston that there were “rumblings” about a un-
ion movement and he wanted him to be aware of it. (Tr. 467–
468.) In January 2011, Taylor asked Wickham if he had heard
warning, for multiple instances of being late for work along with some
other infractions. (GC Exh. 39.)
19 Wickham estimated the box was roughly 3’x 3’. (Tr. 383.)
20 Nagler was terminated in January 2011 for having too many
writeups. (Tr. 543.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
anything from the Mickey Mouse Club. Wickham responded that
he didn’t know anything about it. (Tr. 392–393.)
Pablo testified he first learned the Metro Light Rail officers
were looking into joining a union on January 31, 2011, when he
received an email notice from Respondent’s corporate labor at-
torney.21 (Tr. 46–47.) The Metro Light Rail supervisors dis-
cussed the Union at a meeting on February 1. (Tr. 570–571.)
Pablo sent a letter, dated February 4, 2011, addressed to the “Of-
ficers,” stating the SPFPA had filed a petition and requested an
election. He informed the officers that they were not obligated to
vote one way or the other. He also stressed that the election was
an important decision for the officers, their families, and the
Company, and urged the officers to be well informed prior to
voting.22 (GC Exh. 4.) Pablo instructed the project manager, Ma-
jor Armstrong, to distribute the letter to each employee and post
it on the bulletin board at the McClintock kiosk. (Tr. 57.)
Also on February 4, Pablo convened a meeting in his office
with the supervisors and managers in his chain-of-command ex-
cept for Rice and Taylor. He informed them of the dos and don’ts
of management’s involvement with union organizing. Each at-
tendee received a handout utilizing the acronym “TIPS” to ex-
plain that they cannot threaten, interrogate, promise, or use sur-
veillance in connection with the upcoming election. The handout
also contained tips for making unions unnecessary, using simple
standards such as fairness, honesty, friendliness, courtesy, open-
ness, evenhandedness, and the like. (Tr. 95–96; R. Exhs. 2, 3.)
Armstrong held a separate meeting with all of his direct reports,
including Taylor and Rice, to convey the information he learned
at the meeting. (Tr. 319.)
On February 21, 2011, Pablo sent another letter addressed to
the “Officers.” He informed them of the March 1 election, in-
cluding its time and location. He again stressed the importance
of the decision to the officers, their families, and the Company.
Pablo encouraged employees to do their own research rather than
blindly accept information from any source. He encouraged eve-
ryone to vote, noting that with 15 officers qualified to vote, one
vote could make a difference. (GC Exh. 5.) This letter was deliv-
ered to the employees in the same manner as the previous one.
(Tr. 58.)
In an undated notice, the officers were informed that they were
required to attend a meeting on February 22, 2011, at the Com-
fort Inn, the same place the union election was to take place the
following week. Each officer was scheduled either at 12 p.m. or
at 3 p.m. The notice did not indicate the meeting’s topic. (GC
Exh. 6.) Pablo was the only person who spoke at the meeting. He
read verbatim from a prepared script.23 Pablo once again re-
minded employees of the importance of the election to them,
their families, and the Company. He described the election pro-
cess, reminded employees that they had not obligated themselves
even if they signed a card or petition, and again stressed the im-
portance of voting. Pablo then described what it would mean to
be unionized, stating that employees would no longer be able to
come directly to management with concerns, informing them of
the requirement to pay dues, and encouraging employees to in-
vestigate the rules and obligations of being unionized. Next,

21 Kercher also testified she learned of the union activities at this point
by viewing the same email.
22 Robles perceived the references to effects on family, pay, and the
Company as “key words that really try to strike a nerve to try to discour-
age people into wanting to go to Union.” (Tr. 378.)
23 The script at R. Exh. 4 contains a statement from “Larry” and a
place for comments from “Dean,” which refers to Dean Hemstreet, the
Pablo explained collective bargaining, and informed employees
that the Company was not required to agree to any particular de-
mand. He reminded them that if wages increase too much, clients
will look elsewhere and the Company will lose contracts. Fi-
nally, Pablo urged the officers to educate themselves before vot-
ing. (Tr. 98; R. Exh. 4.)
1. Danny Rice transfer and isolation
Respondent hired Danny Rice on October 6, 2008, to work on
the Metro Light Rail contract. He worked as a patrol officer and
was promoted to lieutenant a year later. As lieutenant, he super-
vised the swing shift, from 2 to 10 p.m. (Tr. 451–453.)
On February 3, 2011, Officer Joe Shipp wrote a memo re-
counting that Rice had informed him earlier that day that the Un-
ion wanted to set things up as early as the following week. Shipp
quoted Rice as saying, “[Y]ou didn’t hear this from me, because
I’m a supervisor and I’m not supposed to be involved with this.”
(R. Exh. 6.). On February 4, 2011, Clemons wrote a memo to
Armstrong regarding the Union. He explained that Rice ap-
proached him and Shipp a few weeks prior and asked if they
would be interested in signing a petition for union representation.
He recounted Rice’s description of the Union, and opined that
Rice was the “driving force” behind the movement to organize.24
(Tr. 573; R. Exh. 5.) Shipp and Clemons provided Pablo with
their respective memos. Officer Robles also observed Rice ask-
ing employees to sign union cards, and perceived that Rice was
engaged in union-organizing efforts. (Tr. 375.) Rice denied be-
ing involved with union organizing. (Tr. 482.).
Pablo and Kercher met with Rice on February 7, 2011, and
issued him a suspension. Rice signed the suspension, and stated
in “comments” section that it would only be acceptable upon him
being allowed to state his side of the story. (R. Exh. 8; Tr. 108,
110.) Pablo informed him that he could prepare a rebuttal letter.
Rice did not submit any rebuttal or other comments regarding the
suspension. (Tr. 110.) According to Pablo, he instructed Rice not
to communicate with any officers assigned to the Metro Light
Rail account while he was doing his investigation. (Tr. 125.)
Rice did not recall this instruction as limited to the time of the
investigation, and testified that it had not been rescinded as of
the hearing. (Tr. 480.)
Pablo sent Armstrong an email, dated February 10, 2011, in-
structing him to ask three or four officers if Rice had approached
them about union activity, and to report back to him the follow-
ing day. Pablo sent a followup email, dated February 11, 2011,
telling Armstrong to ask “Carol, Taylor, Dotter and one more
person.” (Tr. 107; R. Exh. 7.) Armstrong recalled speaking with
Officers Nick Dotter, Gilbert Robles, Carol Taresh, and Lieuten-
ant Tim Taylor.25 (Tr. 317.) Armstrong responded to Pablo with
an email later that same day, informing Pablo that Taresh had
stated Rice advocated the Union, Dotter and Robles had heard
nothing, and he had not heard back from Taylor. (Tr. 554; R.
Exh. 7.) Robles informed Armstrong that he had heard nothing
about the Union, when in fact he had, because he wanted to pro-
tect Rice. (Tr. 369.)
former Metro Light Rail project manager. They did not speak at the meet-
ing, however. (Tr. 101–102.)
24 Clemons testified that he did not contemporaneously inform upper
management about Rice approaching him regarding the Union in De-
cember 2010. (Tr. 571.)
25 Tim Taylor was a supervisor; the other employees were not.
G4S SECURE SOLUTIONS (USA) INC. 29
Armstrong informed officers present at the McClintock kiosk
on February 11, 2001, that Rice had been suspended and that no-
body should make contact with him. (Tr. 370, 553.) Armstrong
also informed Wickham that Rice had been suspended and that
he was to have no contact with him. According to Wickham,
Armstrong stated that if he found out employees had contact with
Rice, they would be terminated. (Tr. 394.)
On February 14, 2011, Pablo and Kercher met with Rice
again. Pablo stated that, based on the information he received
about Rice’s union activity, he was removing him from the
Metro Light Rail account. (Tr. 112.) Rice was demoted from his
supervisory position, with an attendant loss in pay. Rice pro-
tested that he was never asked his side of the story. (Tr. 478.)
Operations staff initially assigned Rice to the Tempe Water
Treatment facility. He was only scheduled part time the first 2
weeks on the job. He called Pablo to complain, and was reas-
signed to a Cricket cell phone retail store on February 24, 2011.
The assignment at Cricket was to armed position with better pay
than the Tempe Water Treatment facility.26 Rice was the only
security officer assigned to that particular Cricket store. (Tr. 55–
57, 452; GC Exh. 41.) Rice made $17.25 per hour at the Metro
Light Rail, and he makes $14 per hour at Cricket. (Tr. 480.)
2. Donald Wickham’s termination
Donald Wickham worked as a security officer for Respondent
from April 2009 to February 2011. He began working on the
Metro Light Rail contract in May 2010. He generally worked as
a kiosk officer, and by the fall of 2010, he worked at the
McClintock kiosk all 4 of his regularly scheduled days. (Tr. 380–
382.)
As detailed above, Wickham became involved in the union
organizing campaign in October 2010. He contacted the Union,
obtained and distributed union informational material, and
served as the liaison with the Union for purposes of answering
employees’ questions and conveying information about the Un-
ion.
In November 2010, Wickham wrote a memo to Major Arm-
strong requesting Christmas and New Years off in order to pick
up his sick mother in Pahrump, Nevada, and take her to his house
for the week. Armstrong stated he did not receive the request.
Wickham was scheduled for work that week, and wrote a second
memo telling management to disregard the first request, since
they apparently already had. Armstrong told Wickham he wished
he would not have done this, since it left a paper trail. In late
November or early December 2010, Armstrong cleared the
McClintock kiosk except for Wickham, Clemons, and himself.
Armstrong told Wickham that if he wanted to keep his job, he
would have to start working special events such as football
games, the New Years Eve party in downtown Tempe, the
Fourth of July, etc. Wickham stated that Armstrong would have
trouble getting officers to volunteer for these events because they

26 Rice had the option to accept or decline this reassignment (Tr. 243).
27 At the beginning of their shifts at the kiosks, officers plug memory
sticks, or thumb drives, into their computers. (Tr. 395.)
28 The security officer report for February 3 shows Eggleston, who has
the code “711”, was in the kiosk from 11:59 a.m. until 12:28 p.m. (GC
Exh. 50.)
29 Eggleston testified that he did not perceive it as cold outside. (Tr.
339–340.) Officer Robles visited the Price & Apache kiosk on February
4, and observed the heater wasn’t working, it was cold, and Wickham
was dressed in winter gear, including a scarf, hat, and heavy jacket. (Tr.
371372.). The General Counsel requests that I take administrative notice
paid straight time rather than overtime if the holiday fell during
the officer’s regularly-scheduled shift. (Tr. 386–390.)
Wickham worked overtime on February 3 and 4, 2011, at the
Price & Apache kiosk. He recalled that a cold front had come
through the area, and the temperature had dipped into the 30s.
The heat was not working, and Wickham recalled it was very
cold in the kiosk. (Tr. 397.) Security officers keep reports detail-
ing what took place during their shifts. Wickham’s security of-
ficer report for February 3, 2011, notes that upon arrival at 4
a.m., the heat was not working in the Price & Apache kiosk, and
the computer would not recognize the memory stick.27 Wickham
emphasized, “EXTEMELY COLD IN KIOSK.” (GC Exh. 50.)
Eggleston did not look at this report. That same day, Wickham
told Eggleston and Clemons the heat was not functioning.28
Wickham was assigned to work 4 a.m. to 2 p.m. at the Price
& Apache kiosk on February 4, 2011. At 7 a.m., Wickham re-
called he was sitting in front of his monitors, bundled up in win-
ter gear because the heat was still not working.29 Lieutenants Eg-
gleston and Clemons arrived at the kiosk at approximately 7:25
a.m. There is normally one lieutenant per shift. Clemons stated
that he had just finished graveyard shift the prior evening, and it
did not make sense to go home before the meeting Pablo had
scheduled for later that morning, so Armstrong advised him to
ride with Eggleston. (Tr. 565–566.) Eggleston testified that
Clemons was there because he was working overtime. Eggleston
stated he did not find out about the union meeting Pablo had
scheduled until after his arrival at the G4S main office following
his work shift.30 (Tr. 339–342.) Eggleston recalled that Wickham
was wearing a jacket, and was seated in his chair facing out the
window, not in the direction of his computer screen.31 (Tr. 355.)
Eggleston viewed him from the glass window on the entrance
door. (Tr. 341, 355–356.) He said to Clemons, “Look Dave.
Come here. He is sleeping.” (Tr. 359.) Clemons also viewed
Wickham from the window on the door. According to Eggleston,
Clemons then went around to the window adjacent and perpen-
dicular to the door to view Wickham, which was the direction
Wickham was facing. (Tr. 360–361; GC Exh. 49.) Clemons tes-
tified that he was standing behind Eggleston the entire time, and
that he only looked into the kiosk from the door. (Tr. 577.) Eg-
gleston stated he beat on the door, at which point Wickham woke
up, got out of his chair, and let him in the kiosk. (Tr. 361.) Ac-
cording to Clemons, Eggleston jiggled the door’s handle, and
Wickham slid over in his chair to open the door. (Tr. 577–578.)
Wickham denied he was sleeping. Clemons asked Wickham
if he needed an energy drink, and Eggleston asked if he needed
to get coffee. Wickham responded that he did not feel well, he
had a sinus infection, and it was freezing cold in the kiosk. Eg-
gleston and Clemons left, and Wickham completed his shift. (Tr.
403–404, 568; GC Exh. 51.) After leaving, Eggleston and
Clemons attended Pablo’s union meeting, described above. (Tr.
341.)
of historical weather data compiled by the U.S. Department of Com-
merce, National Oceanic and Atmospheric Administration, and National
Climatic Data Center, showing a low temperature of 30 degrees on Feb-
ruary 4, 2011. (R. Br. 22, fn. 16.). I take administrative notice of this fact.
Alamanc.com likewise reports the temperature that day at Phoenix Sky
Harbor ranged from a low of 30 degrees to a high of 54 degrees F.
http://www.almanac.com/weather/history/AZ/Tempe/2011-02-04.
30 When a lieutenant works overtime, he assumes the role of a non-
supervisory officer. (Tr. 311.)
31 This would have given Eggleston a side view of Wickham. (R. Exh.
21; GC Exh. 49; Tr. 355–356, 360.).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Later that afternoon, Wickham called Eggleston because he
was nervous that two lieutenants had shown up at the kiosk when
usually only one was on duty. Wickham asked Eggleston if there
were going to be any repercussions based on what had occurred
earlier, and Eggleston told Wickham, “No, I wouldn’t think so.”
Wickham finished his shift and worked 4 more days after that
(Tr. 404–406). Eggleston asked Wickham if he wanted to work
two additional overtime shifts the following Thursday and Fri-
day. Eggleston called Wickham back an hour later and told him
he needed to go to the corporate office in Phoenix. (Tr. 407.)
Eggleston wrote a memo dated February 4, 2011, reporting
that, at approximately 7:25 that morning, he and Clemons had
seen Wickham sleeping on duty at the Price/Apache kiosk. Ac-
cording to Eggleston, when he told Wickham he was not sup-
posed to be sleeping, Wickham replied that he was resting his
eyes and had not gotten much sleep. (R. Exh. 9.) On February 9,
2011, Clemons wrote a memo, per Armstrong’s request, recount-
ing the events on the morning of February 4. Clemons’ memo
states essentially the same thing as Eggleston’s. (Tr. 567; R. Exh.
10.)
After consulting with Pablo, Kercher issued Wickham a 3-day
suspension on February 10, 2011, for sleeping on duty.32 She in-
formed him of this in a meeting in her office, and told him to
return the following Monday. (Tr. 407–408.) Wickham wrote
on the suspension that he did not say he was resting his eyes, but
instead said he had been sick with a head cold. (Tr. 408–409; GC
Exh. 17.)
Kercher testified that she based the suspension on a review of
the memos Clemons and Eggleston provided, as well as review
of the security videotape at the Price & Apache kiosk. (Tr. 145–
147; GC Exh. 17.) The Price & Apache kiosk has light sensors
that respond to body movement. (Tr. 373–374, 400.) When she
viewed the tape with Dustin Jiminez, supervisor at the passenger
assistant area (PAA), Jiminez was able to point out when the
lights in the kiosk went off and on, but Kercher was not able to
make this distinction on her own. (Tr. 242–243, 275.) Kercher
testified that at one point during the videotape, when the lights
came on in the kiosk, she could see the word “security” on the
back of Wickham’s jacket. (Tr. 146.) Upon reviewing the vide-
otape at the hearing, Kercher was not able to see Wickham, Eg-
gleston, or Clemons, and she could not see Wickham’s computer
monitor. She also did not see the light go on at the Price &
Apache kiosk at any point, including when Eggleston and
Clemons entered it at approximately 7:25 a.m. (Tr. 235–240; GC
Exh. 42.)
Wickham was discharged effective February 14, 2011. Pablo
made the decision, and Kercher signed the paperwork. Pablo did
not view the videotape. In the “reason for disciplinary action(s)”
section, the termination notice states:
Based on HR review of the taped footage of the Kiosk at Park
and Apache on 2/4/11, it clearly showed that the kiosk was dark
from 0657 until at least the end of the tape at 0714.33
This tape clearly showed no movement inside the Kiosk for this
duration of time indicating that the officer inside was asleep or

32 Wickham testified it was a 5-day suspension because he was told to
return 5 days later. (Tr. 407.)
33 The tape ends after 7:29 a.m.
34 The disciplinary action involving Nicholas Young is incomplete
and does not appear to have been effectuated. The type of action contem-
plated by the disciplinary notice is not checked, and there is no employee
not attending to his duties. The light should always be on in the
Kiosk so Security presence is noted at all times.
(Tr. 84, 115, 147–149; GC Exh. 18.) After viewing the video at
the hearing, Kercher then testified that the video played very lit-
tle role in the decision to terminate Wickham, and that the final
decision had already been made before she viewed it. (Tr. 242.)
Kercher and Armstrong met with Wickham to give him his
termination notice. Kercher informed him that they had reviewed
video evidence, and that the light did not come on in the kiosk,
which indicated that he was asleep or remiss in his duties. (Tr.
409.) Wickham mentioned that other employees had been caught
sleeping on duty and had not been terminated. Armstrong re-
plied, “Well I guess now we are following the rules.” (Tr. 410.)
Kercher noted that Wickham was insubordinate during the meet-
ing. She perceived him as angry. Wickham recalled he spoke in
a louder voice than normal because he was blindsided. Both par-
ties agree that Wickham did not make any threats. At the end of
the meeting, Wickham said that Respondent was “dirty.” (Tr.
150–152, 272, 410–411; GC Exh. 18.)
Pablo testified that he has never authorized a penalty shy of
termination for sleeping on duty since he has been the general
manager of the Phoenix area. (Tr. 115.) He testified he did not
know Wickham prior to February 4, he did not know about his
union activity, and was not aware of any complaints from Wick-
ham about wages or working conditions. (Tr. 114–116.) Kercher
denied knowledge of Wickham’s involvement in any union ac-
tivities, and Wickham had not complained to her about wages or
other working conditions. (Tr. 259, 271.)
The General Counsel introduced evidence regarding the dis-
cipline of other employees who were caught sleeping on duty or
engaging in other conduct that can be grounds for immediate ter-
mination, who received treatment more favorable than Wick-
ham.34
On November 12, 2009, Lieutenant Rice found Officer Gerald
Hill sleeping on duty at the Sycamore kiosk. He called for a wit-
ness, and Officer Trueblood arrived, they woke Hill up, and Rice
called Major Thario to ask what to do. Thario said to write Hill
up and give him an oral warning, and Rice complied. Trueblood
signed as a witness. The warning was in Hill’s personnel file.
(Tr. 154, 472–474; GC Exh. 19.) Kercher testified she was not
aware of the warning until she reviewed Hill’s personnel file in
preparation for Wickham’s unemployment compensation hear-
ing.35 (Tr. 256–257.)
Timothy Causey was initially discharged for sleeping on duty
on January 15, 2010. At the time, he was working at the McClane
Sunwest jobsite. As of March 3, 2010, Causey still worked for
Respondent at the Union Pacific Railroad jobsite. On March 3,
two individuals filled out incident reports relating that Causey
had an accident with his truck. He had said he was sleepy and
could not drive. According to the reports, Causey had left the
jobsite suddenly without telling anyone. Kercher changed Cau-
sey’s termination to a 90-day suspension on April 16, 2010, after
learning that Causey had been prescribed pain medication for
dental problems. Kercher instructed him not to take pain medi-
cation while on duty. (Tr. 165, 255; GC Exh. 21.)
or witness signature. Moreover, Kercher’s testimony that it was not in
Young’s personnel file is unrefuted. I therefore find that it does not have
sufficient evidentiary value to warrant consideration of Young as a com-
parative employee. (Tr. 254; GC Exh. 20.)
35 Wickham had also stated Hill was not fired for sleeping on duty
during his termination meeting with Kercher.
G4S SECURE SOLUTIONS (USA) INC. 31
Brian Pike was terminated on January 25, 2010, for sleeping
on duty. On January 20, the Bank of America team manager,
“Toni,” went to notify security that an associate had passed out
and paramedics had been called. She saw the security officer,
Pike, asleep, and she “literally walked out of the door and spoke
to him before he opened his eyes.” In a January 22, 2011 email,
Colin Millan from Bank of America, sent a letter to Brandi
Stokes,36 copied to Pablo, stating that this was the second time
security had been found sleeping on day shift. Pike had initially
received a final warning on January 22, but that was changed to
a termination after Pablo reviewed videos from a security camera
that clearly showed him sleeping. Kercher wrote a memo to file
on January 25, stating that after reviewing photos from a security
camera, the decision was made to terminate him. Pike attempted
to attribute his sleeping to having low blood sugar, but this med-
ical condition was not substantiated. He had previously received
a written warning on June 18, 2009, for using foul language and
being disrespectful. (Tr. 253–254, 591; GC Exh. 22.)
Jon D’Ancona was terminated effective January 29, 2010, for
sleeping on duty. Prior to that, D’Ancona had been disciplined
numerous times. He received a 3-day suspension on January 23,
2010, for leaving his post of duty without authorization. He was
issued a written warning on January 15, 2010, for putting out cat
food on Bank of America’s property despite site supervisor’s or-
der to stop feeding the cats. The warning notes that further rep-
rimand will be grounds for removal. D’Ancona received an oral
warning on June 1, 2009, for wearing his badges in the incorrect
place and refusing to correct the matter when first informed. On
September 22, 2008, he received an oral warning for failing to
follow access control procedures. On July 9, 2008, D’Ancona
was issued a first written reprimand for violating captain’s orders
not to drive a cart on the street. He received a final warning on
August 8, 2008, for dozing off while sitting at his computer desk.
In the comment section, it notes that “sleeping on duty is a most
serious offense and cannot be tolerated anytime” and warns that
termination may result if the issue is not corrected.37 On March
30, 2008, he received a second written reprimand for failing to
unlock all employee doors and arguing with the shift supervisor
when she tried to help him. Three days prior, on March 27, 2008,
D’Ancona received a first written reprimand for failing to re-arm
two emergency doors after contractors left the jobsite. (GC Exh.
23.)
John Stone received an oral warning on March 24, 2010, for
sleeping on duty after being observed on three occasions during
the week of March 15 sleeping while sitting in his golf cart. At
the client’s request, Stone was moved to a different jobsite. In
the “supervisor’s remarks” section, Kercher noted that the alle-
gations were unfounded. (GC Exh. 24.)
Marcus Oglesby was terminated on August 6, 2010, for sleep-
ing on duty. He was suspended for 3 days pending investigation
on August 3. On the suspension document, his supervisor re-
marked that while she had not received any negative reports
about Oglesby, a review of his file showed previous writeups for
sleeping on duty. (GC Exh. 25.) Kercher was not aware Oglesby
had received any prior writeups for sleeping on duty, and she did

36 Stokes’ job title was not identified.
37 Pablo was on vacation the first 2 weeks of August 2008. (Tr. 591.)
38 Pablo testified he was unaware of the prior entry for sleeping on
duty. (Tr. 594.)
not see any when she reviewed the file a week before the hearing.
(Tr. 252–253.)
Enoch Harmon was terminated on July 13, 2010, for sleeping
on duty. He was suspended pending investigation on July 7. On
the suspension document, his supervisor remarked that Harmon
had received a corrective action notice for sleeping on duty in
February 2008, and a suspension for no-call/no-show on Novem-
ber 2, 2009. As a result, he had been placed on probation through
February 2010. (GC Exh. 26.)
Benjamin Berry was terminated on July 16, 2010, for using
abusive language and behaving disrespectfully. At the request of
Ken Deist, the Bank of America site manager, Operations Man-
ager Dean Hemstreet conducted a career development review of
Berry’s past discipline. The March 22, 2010 review notes that
Berry had been late four times in the last 8 months, he had called
off less than 4 hours prior to the start of his shift, he violated post
orders twice, threatened to harm another officer, and was caught
sleeping on duty and given a second chance. Hemstreet warned
that any further disciplinary actions would lead to termination.
Pablo did not review or sign the career development review (Tr.
593–594; GC Exh. 27.)
Kalin Trotter was discharged on August 19, 2009, for taking
an executive chair from an unauthorized location, plugging in an
ipod, and putting his feet up on his desk. He had previously re-
ceived a written warning on September 3, 2008, for sleeping on
duty, in addition to other infractions between 2004–2006.38 (GC
Exh. 28.)
Sheletha Randell was terminated on April 29, 2010.39 On
April 28, 2010, Randell had received an oral warning for taking
a personal call and talking for several minutes while on duty 2
days prior. Also on April 28, she was issued a suspension pend-
ing investigation for sleeping on duty. She had previously re-
ceived a final warning on April 6, 2010, for excessive tardiness.
She was issued a written warning on April 5, 2010, for being
tardy three times since her assignment date of March 17, 2010.
Major Amber Stewart had reported to operations that her shift
supervisor had observed Randell nodding off in March and April
2010. During February 2010, Randell had fallen asleep several
times during training class. (GC Exh. 29.)
Between September 1, 2008, and October 5, 2011, 32 officers
were terminated for sleeping on duty. (R. Exh. 21.)40
3. Alleged threats, surveillance, and interrogation
Many of the allegations regarding surveillance and threats are
discussed in context above. I will address the remainder in this
section.
During Wickham’s hearing for unemployment compensation,
Kercher testified that Officer Hill and Young’s discipline was
confidential (Tr. 162).
Banuelos worked in the PAA from February through April
2011 because she was pregnant and could no longer work with
the public. According to Banuelos, in March 2011, her supervi-
sor at the PAA, Dustin Jiminez, told her that Pablo had stated
that after expiration of the Light Rail contract, he was not going
to rehire anyone who supported the Union. (Tr. 432.) Pablo de-
nied every telling anyone that he would not rehire employees
who supported the Union (Tr. 119–120.)
39 The personnel action change states the termination is effective April
29, 2010. It lists her last day worked as April 25, 2010, which is clearly
an error.
40 It is unknown as to whether any of these officers had prior disci-
pline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
According to Rice, in or around October 2010, he and Taresh
found a tape recorder attached with duct tape under the corner of
the desk where the computer sits at the McClintock kiosk. (Tr.
469–470.) Taresh testified that in July/August 2010, she, Ster-
ling, Rice, and perhaps Brett McAlister, found what appeared to
be fresh tape under the computers at the McClintock kiosk, im-
pressed with “little bitty holes” consistent with a recorder. (Tr.
562–564.)
Armstrong denied knowing about any union activities in the
December 2010 time period. (Tr. 335.) He denied saying any-
thing about union activities being investigated or under surveil-
lance, and denied threatening reprisals. (Tr. 335–336.)
III. DECISION AND ANALYSIS
A. Rules and Policies
Section 8(a)(1) of the Act provides that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act. The rights guaranteed in Section 7 include the right “to
form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . .”
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule vio-
lates Section 8(a)(1), the appropriate inquiry is whether the rule
would reasonably tend to chill employees in the exercise of their
Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Under the test enun-
ciated in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), if the rule explicitly restricts Section 7 rights, it is unlaw-
ful. If it does not, “the violation is dependent upon a showing of
one of the following: (1) employees would reasonably construe
the language to prohibit Section 7 activity; (2) the rule was prom-
ulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Id. at 647. A
rule does not violate the Act if a reasonable employee merely
could conceivably read it as barring Section 7 activity. Rather,
the inquiry is whether a reasonable employee would read the rule
as prohibiting Section 7 activity. Id. The question of whether a
rule or policy is on its face a violation of the Act requires a bal-
ancing between an employer’s right to implement certain legiti-
mate rules of conduct in order to maintain a level of productivity
and discipline at work, with the right of employees to engage in
Section 7 activity. Firestone Tire & Rubber Co., 238 NLRB
1323, 1324 (1978).
1. Professional image rule
For the reasons detailed below, I find the professional image
rule set forth in Respondent’s security officer handbook is
overly-broad, and violates Section 8(a)(1).
In Republic Aviation Corp v. NLRB, 324 U.S. 793, 801–803
(1945), the Supreme Court held that employees have a protected
right to wear union buttons at work. This right is balanced
against the employer’s right to maintain order, productivity, and
discipline. The Board has struck this balance by permitting em-
ployers to prohibit employees from wearing union insignia

41 The Pinkerton’s Memorandum stated that the rationale behind the
employer’s rule applied both to day security guards, who would more
frequently interact with the public, and night security guards, who were
where “special circumstances” exist. Id. at 797–798; see also
Sam’s Club, 349 NLRB 1007, 1010 (2007). “The Board has
found special circumstances justifying the proscription of union
insignia when its display may jeopardize employee safety, dam-
age machinery or products, exacerbate employee dissention, or
unreasonably interfere with a public image which the employer
has established as part of its business plan, through appearance
rules for its employees.” United Parcel Service, 312 NLRB 596,
597 (1993), enfd. denied 41 F.3d 1068 (6th Cir. 1994) (citing
Nordstrom, Inc., 264 NLRB 698, 700 (1982)). A rule based upon
special circumstances must be narrowly drawn to restrict the
wearing of union insignia only in areas or under circumstances
which justify the rule. Sunland Construction Co., 307 NLRB
1036 (1992). Customer exposure to insignia is not, by itself, a
special circumstance, nor is the requirement that an employee
wear a uniform. United Parcel Service, supra.
In support of its position that its rule is valid, Respondent
points to three Advice Memoranda: Pinkerton’s Inc, Cases 18–
CA–16257–1 and 18–CA–16332-1 (January 3, 2003); Allied
Barton Security Services, Cases 4–CA–34212, 1–CA–42870, 5–
CA–32694, 19–CA–30048, and 20–CA–32724 (March 3, 2006);
and Hannon Security Services, Case 18–CA–18047 (August 11,
2006). In all three instances, the Associate General Counsel, Di-
vision of Advice, opined that special circumstances existed per-
mitting the employer to bar on-duty security officers from wear-
ing buttons or other insignia that deviated from the officers’ uni-
forms. Advice Memoranda are not legal precedent, and are de-
pendent on the specific factual circumstances presented by the
cases they address. In all three cases cited above, however, it is
worth noting that the rulings contemplated that the security
guards would interface with the public.41 As discussed above, the
security officers working in the passenger assistance area do not
have any face-to-face contact with the public. Any concerns
about commanding authority with the public or presenting a cer-
tain public image would not apply to these employees. Respond-
ent has pointed to no authority to establish a special circumstance
with respect to the PAA officers. I find, therefore, that the rule is
overly-broad.
Moreover, the “no insignias, emblems, buttons” rule does not
specify that it is limited to officers who are on duty. Respondent
argues that because the professional image section begins by
stating “You must be clean and neat while on duty,” the limita-
tion to duty status may be inferred. Looking at the rule as a
whole, it is within a section entitled “Duties, Personal Appear-
ance and Conduct.” Within this section is a prohibition on vio-
lating Federal, State, and local laws, and an employee’s duty to
inform his/her supervisor if arrested. Obviously, these rules ap-
ply to off-duty conduct. The professional image subsection de-
lineates the type of haircuts security officers must have, as well
as male facial hair parameters, which by their nature cannot be
confined to duty hours. Moreover, with regard to facial jewelry,
the professional image subsection states that these must not be
worn during working hours or anytime when in uniform. The
Lutheran Heritage principle provides that the Board must give
the rule under consideration a reasonable reading, 343 NLRB at
647, and ambiguities are construed against the its promulgator.
Lafayette Park Hotel, 326 NLRB at 828; and Cintas Corp. v.
less likely to interact with the public. It noted, “Since all of the Em-
ployer’s security officers are in positions where they may need to assist
or confront members of the public, the rule is not overbroad in its appli-
cation to all officers.”
G4S SECURE SOLUTIONS (USA) INC. 33
NLRB, 482 F.3d 463, 467–470 (D.C. Cir. 2007). Read in context
and construed against Respondent, its promulgator, it is not clear
the rule is restricted to on-duty security officers. Accordingly, I
find it is overly-broad and it violates Section 8(a)(1) of the Act.42
2. No unnecessary conversations rule
I find the “No Unnecessary Conversations” rule violates Sec-
tion 8(a)(1) for the reasons articulated below.
The rule does not explicitly restrict Section 7 rights. Accord-
ingly, one of the other Lutheran Heritage criteria for establishing
a violation must be present. My conclusion relies on the third
criteria, i.e., the rule has been applied to restrict the exercise of
Section 7 rights. On this point, there is conflicting testimony. Of-
ficer Taresh testified that in November 2010, Lieutenant
Clemons told a specified group of employees in the McClintock
kiosk that the Union should not be discussed at work. She further
testified that the following week, Clemons cautioned her to be
careful talking about the Union because it shouldn’t be discussed
at work. (Tr. 551–552.) Clemons recalled that, some time after
February 4, 2011, he told some unspecified employees not to dis-
cuss the Union in the kiosk, because that was his office and he
could not be privy to these discussions. He denied that he other-
wise instructed anyone not to discuss the Union, and denied
knowledge of any union activity. (Tr. 568, 572.) I credit Taresh
over Clemons for a couple of reasons. First and foremost,
Taresh’s demeanor was confident, open, and straightforward.
Clemons, by contrast, was less straightforward, and his testi-
mony at times seemed confused. In addition to her demeanor, I
credit Taresh’s testimony because she has nothing to gain or lose
by being forthcoming and truthful. She left Respondent’s em-
ployment voluntarily to pursue another job. There was nothing
in her demeanor or in the evidence presented to indicate she har-
bored a grudge against Respondent.43 Clemons, on the other
hand, has a vested interest in keeping his job and maintaining his
status as a lieutenant.
Respondent contends that Clemons’ testimony is more relia-
ble because he wrote a memo to his boss, Armstrong, on Febru-
ary 4, 2011, informing him that Rice had approached him a few
weeks ago about signing a petition for union representation. (R.
Exh. 5.) The memo, however, does not reference Taresh, and
does not contradict her testimony. Significantly, February 4 is
the same date that Pablo sent his first memo to the officers noti-
fying them of the petition; Pablo met with the managers and su-
pervisors regarding the dos and don’ts of how management
should be involved; and Wickham was caught sleeping.
Clemons’ memo is an after-the-fact recollection of Rice’s in-
volvement with the Union written to comport with the unfolding
events. Under these circumstances, I do not find it to be very re-
liable.
The Board has held that it is unlawful to restrict conversation
about union matters during worktime while permitting conversa-
tions about other nonwork matters. Emergency One, Inc., 306

42 Both parties’ briefs address the rule as it pertains to Respondent’s
on-duty officers on the Metro Light Rail who deal with the public. The
complaint, however, is not restricted to these officers, or even to the of-
ficers within the Phoenix area. Given the many different types of security
Respondent provides nationwide, I cannot speculate about which situa-
tions may involve special circumstances and which may not. The evi-
dence presented shows that some security officers do not deal with the
public, and the rule can be reasonably read to apply to off-duty officers.
On this evidence, I find it is overly-broad, but I cannot, at this juncture,
NLRB 800 (1992); Sam’s Club, 349 NLRB 1007, 1009–1010
(2007). Taresh’s testimony that employees regularly talked
about things like “sports, buying cars, houses, what was on TV
last night” at work is unrefuted.44 (Tr. 562–563.) Clemons’ state-
ments not to talk about the Union at work, as described by
Taresh, whom I credit, were not limited to duty time or any par-
ticular work area. Based on the foregoing, I find the rule was
applied to restrict Section 7 rights, and it therefore violates the
Act.45
3. Confidentiality provision
I find the confidentiality provision violates Section 8(a)(1) for
the reasons articulated below.
The handbook’s confidentiality provision that existed prior to
January 2011 explicitly prohibited employees from disclosing
wage or salary information, and threatened employees with dis-
cipline, up to termination, for violating it. The Board has consist-
ently held that a confidentiality provision that expressly prohibit
employees “from discussing among themselves, or sharing with
others, information relating to wages, hours, or working condi-
tions, or other terms and conditions of employment” violates
Section 8(a)(1) even if it was never enforced and was not unlaw-
fully motivated. As such, the rule was unlawful under Lutheran
Heritage. See Waco, Inc, 273 NLRB 746, 748 (1984); Double
Eagle Hotel & Casino, 341 NLRB 112, 115 (2004).
The handbook provision in place effective January 2011 does
not explicitly reference wage or salary information. Respondent
contends that by removing this language, it brought the rule into
compliance. The provision, however, still prohibits employees
from disclosing confidential information and giving interviews
or making public statements about the Company’s activities or
policies without Respondent’s permission. The handbook does
not define “confidential information” or the “activities or poli-
cies” it references, nor does it affirmatively state that the rule will
not be used to restrict Section 7 activity. I find it is very similar
to the confidentiality provisions in Flamingo Hilton-Laughlin,
330 NLRB 287 (1999). There, the company prohibited employ-
ees from revealing confidential information regarding custom-
ers, fellow employees, or the hotel’s business. It further stated:
Much of the Hotel business is confidential and must not be dis-
cussed with any party not associated with the Hotel. You
should use discretion at all times when talking about your
work. The Hotel considers all information not previously dis-
closed to outside parties by official Hotel channels to be pro-
prietary information. Questions or calls from news media
should be immediately transferred and responded to by the
Marketing Department or the President of the Hotel. At no time
should you talk to the media about Hotel operations.
If you should discuss or disclose proprietary information, you
may be subject to disciplinary action, up to and including ter-
mination.
specify where special circumstances may apply throughout Respond-
ent’s operations.
43 Respondent, in fact, took quick action to fire Thario after Taresh
complained of unwanted touching and comments.
44 Not only is Taresh’s testimony unrefuted, it is a matter of undenia-
ble collective experience that people talk about things other than work
while at work.
45 Because I find that the rule was applied to restrict Sec. 7 activity, I
decline to address Respondent’s argument that employee’s would not
reasonably construe the rule as restricting Sec. 7 activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
Id. at 291–292. The Board found the rule in Flamingo Hilton-
Laughlin would be reasonably construed as restricting em-
ployee’s from discussing terms and conditions of employment,
and held it was overly-broad. The rule at issue here is similarly
vague and overly-broad, and I therefore find it violates Section
8(a)(1).
4. Social networking policy
The General Counsel alleges that two provisions in Respond-
ent’s social networking policy violate the Act. I find that one
contested part of the social networking policy violates Section
8(a)(1), but the other does not.
Since November 22, 2010, Respondent has maintained a so-
cial networking policy. The contested provisions prohibit com-
menting on work-related legal matters without permission from
the legal department, and placing photographs of employees at
work or in uniform on social networking sites. In its opening sec-
tion, labeled “Discussion,” the policy recognizes employees’
rights to share work experiences, and sets forth rationale for im-
posing some restrictions on work-related social networking. The
section concludes by stating, in bold print, “This policy will not
be construed or applied in a way that interferes with employees’
rights under federal law.”
I will first address the provision that prohibits commenting on
any legal matter without permission from the legal department.
This rule does not expressly restrict Section 7 activity, nor was
evidence presented that it was promulgated in response to it, or
that it was applied to restrict the exercise of Section 7 rights. Ac-
cordingly, I must determine whether it would reasonably be con-
strued as prohibiting protected activity. For the reasons set forth
below, I find that it would.
The term “legal matters” is not defined. It cannot be assumed
that lay employees have the knowledge to discern what is a Fed-
eral law, and thus permitted under the disclaimer, as opposed to
what is a prohibited “legal matter.” I find the rule is reasonably
interpreted to prevent employees from discussing working con-
ditions and other terms and conditions of employment, particu-
larly where the discussions concern potential legal action or
complaints employees may have filed. Social network discus-
sions can vary from postings everyone in the public can see, to
messages between specific individuals only. The rule at issue
here would reasonably be read to prohibit two employees, such
as Sterling and Banuelos, from sending messages to each other
about their issues at work and their EEOC and hotline complaints
via a social networking site. Likewise, it would reasonably pro-
hibit a discussion group among concerned employees on a social
networking site. Because this part of the policy is reasonably in-
terpreted to thwart protected discussions, I find it violates the
Act.46
Regarding the prohibition on placing photographs on social
networking sites, this rule does not expressly restrict Section 7
activity, nor was evidence presented that it was promulgated in
response to it, or that it was applied to restrict the exercise of
Section 7 rights. As such, I must determine whether it would rea-
sonably be construed as prohibiting protected activity. For the
reasons set forth below, I find that it would not.

46 The prohibition’s venue, which is limited to social networking sites,
does not render the rule valid. See, e.g., Valley Hospital Medical Center,
351 NLRB 1250, 1252–1254 (2007), enfd. sub nom. Nevada Service Em-
ployees Local 1107 v. NLRB, 358 Fed. Appx. 783 (9th Cir. 2009);
Kinder-Care Learning Centers, 299 NLRB 1171, 1171–1172 (1990).
In Flagstaff Medical Center, 357 NLRB 659, 664 (2011), the
employer adopted a rule prohibiting the “use of cameras for re-
cording images of patients and/or hospital equipment, property,
or facilities.” In finding that employees would not reasonably
interpret the rule as restricting Section 7 activity, the Board noted
that the hospital had significant privacy concerns, and found that
employees would reasonably interpret the rule as legitimately
protecting patient privacy. There are two key differences be-
tween the instant case and Flagstaff Medical Center. First, the
prohibition here only applies to posting photographs of the
worksite or uniformed employees on social networking sites,
whereas in Flagstaff Medical Center, the rule banned all photog-
raphy of hospital equipment and property. As the rule at issue
here is less restrictive, this difference obviously weighs in Re-
spondent’s favor.
Second, the Board found significant management’s legal duty
at Flagstaff Medical Center to protect patient privacy, a concern
largely unique to a hospital setting. While patient privacy is not
as great a concern in this case, Respondent clearly has legitimate
reasons for not having pictures of uniformed employees or em-
ployees who are at work posted on Facebook and similar sites.
Starting with the worksite, Respondent does have patient privacy
concerns for the EMT services it provides. Moreover, Respond-
ent serves a variety of clients on a national basis. The various
businesses and Government agencies where its employees work
can be presumed to have their own rules centered on privacy and
legal concerns. I find the rule at issue here is reasonably con-
strued as protecting Respondent’s clients. To read it as a prohi-
bition on Section 7 activity strikes me a stretch, particularly con-
sidering the rule does not ban photographs but merely prohibits
employees from posting them on social networking sites. As for
the prohibition on posting pictures of uniformed employees, this
would not reasonably seem be an inherent component of the
more generalized fundamental Section 7 rights. What readily
comes to mind is a desire to avoid broad dissemination of photos
of uniformed employees engaging in unprofessional behavior.
Again, this is not a ban on taking and using photographs; it is a
prohibition on posting them on social networking sites that are
potentially accessible to employees and nonemployees alike.47
This does not amount to “an unreasonable impediment to self-
organization.” Republic Aviation, 324 U.S. at 803.
The General Counsel asserts that the rule would essentially
bar an employee from posting a photograph about an unsafe
working condition, concerns about uniform appearance and
safety, as well as pictures of concerted activities such as hand-
billing or picketing in front of Respondent’s facilities. It is true
that Respondent may not interpret the policy to prohibit employ-
ees from engaging in legitimate union-related activity such as,
for example, taking photos unsafe working conditions or other
concerted activities unless patient privacy or a similar privacy
right is compromised. See Lutheran Heritage Village-Livonia,
343 NLRB at 646–647; Lafayette Park Hotel, 326 NLRB at 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Because I find, how-
ever, this part of the policy is not reasonably construed as a pro-
hibition on Section 7 activity, I shall recommend dismissing the
attendant part of the amended complaint.
47 As in Flagstaff Medical Center, the General Counsel here does not
argue, much less establish, that posting of any photographs predating the
rule’s promulgation was protected by Sec. 7.
G4S SECURE SOLUTIONS (USA) INC. 35
5. Scope of remedy
As a remedy for the rule/policy violations, the General Coun-
sel requests nationwide posting and revocation of the unlawful
rules. In 2 Sisters Food Group, 357 NLRB 1816 (2011), the
Board modified the judge’s recommended Order to conform
with Guardsmark, LLC, 344 NLRB 809, 811–812 (2005). It or-
dered the company to rescind the unlawful provisions and repub-
lish its rules of conduct and employee handbook without them.
The Board in 2 Sisters Food Group, supra, recognized, however,
that this could entail significant costs, and therefore ordered the
following:
Respondent may supply the employees either with Rules of
Conduct and handbook inserts stating that the unlawful rules
have been rescinded, or with new and lawfully worded rules on
adhesive backing which will cover the old and unlawfully
broad rules, until it republishes the Rules of Conduct and hand-
book without the unlawful provisions. Thereafter, any copies
of the Rules of Conduct and handbook that are printed with the
unlawful rules must include the new inserts before being dis-
tributed to employees.
Id. slip op. at fn. 32, citing Guardsmark, supra at 812 fn. 8. I find
the 2 Sisters Food Group remedy to be appropriate here. For the
reasons set forth in Fresh & Easy Neighborhood Market, 356
NLRB No. 15, slip op. at 2 (2011), and Technology Service So-
lutions, 334 NLRB 116, 117 (2001), I also find a nationwide
posting is appropriate in the manner detailed below.
B. Alleged Threats, Surveillance, and Interrogation
The Board’s well-established test to determine if there has
been a violation of Section 8(a)(1) of the Act is whether the em-
ployer engaged in conduct which might reasonably tend to inter-
fere with the free exercise of employee rights under Section 7 of
the Act. American Freightways Co., 124 NLRB 146 (1959). It is
the General Counsel’s burden to prove that a statement or con-
duct constitutes an unlawful threat, interrogation or act of sur-
veillance.
1. Lieutenant Danny Clemons
The General Counsel alleges that in November 2010, Clemons
threatened unspecified reprisals and gave employees the impres-
sion their union activities were under surveillance. As detailed
below, I find Clemons’ comments did threaten reprisals for un-
ion activity but they did not create the impression of surveillance.
For the reasons discussed above in the No Unnecessary Con-
versations analysis, I credit Taresh’s testimony that, in Novem-
ber 2010, Clemons told her and others at the McClintock kiosk
not to discuss the Union at work. During the first conversation,
in the presence of Officers Taresh, Shipp, and Sterling, Clemons
told Rice he would take some union literature, but said that the
Union should not be discussed at work. (Tr. 551–552.) About a
week later, Clemons warned Taresh to be careful who she talked
to about the Union and where she did it, because the Union
should not be discussed at work. (Tr. 552.) The General Counsel
asserts that these comments were veiled threats that if union dis-
cussions continued, employees could be disciplined. The com-
ments, on their face and taken in context, are more cautionary
than explicitly threatening. In fact, Rice testified that Clemons
was an advocate for the Union, and that he had stated there was
possibly a need for it. (Tr. 468.) This does not, however, make
Clemons’ comments lawful. In Jordan Marsh Stores Corp., 317
NLRB 460, 462–463 (1995), the Board found that cautionary ad-
vice from a supervisor to an employee to watch her back “might
have been all the more ominous” coming “from a friend sin-
cerely concerned for the employee’s job security.” See also
Olney IGA Foodliner, 286 NLRB 741, 748 (1987), enfd. 870
F.2d 1279 (7th Cir. 1989) (threats possibly intended as “friendly
advice” found violative); Trover Clinic, 280 NLRB 6 fn. 1
(1986) (“keep a low profile” and “be quiet about it”); Union Na-
tional Bank, 276 NLRB 84, 88 (1985) (“watch yourself”).
Clemons’ comments to be careful about where and with whom
to discuss the Union are very similar to the comments above,
which were found to constitute threats of unspecified reprisals.
Accordingly, I find these comments violate Section 8(a)(1) of the
Act.
I find, however, that Clemons’ comments did not create the
impression of surveillance. The test for whether an employer’s
statement creates an impression of surveillance is whether the
employee would reasonably assume from the statement that her
union activities were under surveillance. United Charter Service,
306 NLRB 150 (1992). No evidence was presented that Clemons
was in any way spying on employees’ union activity. The only
evidence of activity that could arguably be labeled surveillance
related to a possible recording device at the McClintock kiosk.
Taresh testified that in July/August 2010, she and some others,
including Rice, found what appeared to be fresh tape under the
computers at the McClintock kiosk, impressed with “little bitty
holes” consistent with a recorder.” (Tr. 562–564.) Rice recalled
that in October 2010, he, Taresh, and some others found a tape
recorder attached with duct tape under the corner of the desk
where the computer sits at McClintock & Apache. (Tr. 469–
470.) Regardless of the inconsistency between Rice and Taresh’s
testimony, Clemons has not been linked to any type of recording.
He never stated employees were being monitored, nor do his
comments, taken in context, imply such. The comments occurred
when employees were voluntarily discussing the Union in
Clemons’ presence. It is clear from both Taresh’s and Rice’s tes-
timony that they were not uncomfortable mentioning the Union
to Clemons. This separates the instant situation from cases where
a supervisor, unbeknownst to employees, gains knowledge about
union organizing efforts and confronts employees with it. More-
over, prior to Clemons’ comments, employees used the code
Mickey Mouse Club, spoke of the Union in the hypothetical, and
cautioned potential members not to discuss the organizing cam-
paign. Clemons’ comments are in line with the general discretion
employees already had determined was appropriate. Based on
the totality of the evidence, I find Clemons’ comments did not
create the impression of surveillance.
2. Major Jason Armstrong
The General Counsel asserts that in December 2010, Arm-
strong created the impression of surveillance when he told Of-
ficer Nagler that he knew Nagler had been talking to several
other officers about joining a union. I must first address Arm-
strong’s testimony, and Respondent’s argument, that he did not
know about the union organizing campaign until January 2011.
In making credibility resolutions, it is well established that the
trier of fact may believe some, but not all, of a witness’s testi-
mony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir.
1950). I found Armstrong to be a credible witness on many
points, based on his forthcoming and engaging demeanor. His
testimony was more cautious and equivocal, however, when ad-
dressing his knowledge of the Union, and had characteristics of
toeing the company line. For example, he testified that he learned
of the Union “[a]round maybe the middle of January 2011.” (Tr.
315.) Referring to himself and Pablo, he testified, “We received
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
a letter and that is how Larry was actually notified that there was
a union attempt to be started.” Armstrong did not receive a letter,
but rather Pablo received an email. I don’t find the semantic dis-
tinctions important, but instead find this testimony illustrative of
how Armstrong’s testimony at times took on characteristics of
being not only his own, but that of the Company.48
Nagler’s testimony was brief and very straightforward regard-
ing his conversation with Armstrong at the McClintock kiosk in
mid-December 2010. There was nothing in his voice or his ac-
tions to indicate that he was fabricating the content or timing of
the conversation. His testimony that Armstrong approached him
and stated he knew Nagler had been discussing the Union is ob-
viously more favorable to the General Counsel. On the other
hand, Nagler’s testimony that Armstrong, in this same conversa-
tion, stated he had nothing against unions, but as manager he
could not join one, is more favorable to the Respondent. This is
an indication that Nagler was not exaggerating or embellishing
his testimony to make it more favorable to one party’s side.49 On
cross-examination, his recollection regarding a different conver-
sation he had with Rice required refreshing, but this does not, in
my view, diminish his overall credibility. Armstrong did not spe-
cifically deny having this conversation with Nagler, but rather
gave a blanket denial as to his knowledge of union activity prior
to January 2011. Nagler is a disinterested witness who worked
for another employer at the time of the hearing. Armstrong, by
contrast, is the project manager, with a vested interest in main-
taining his position of power at the Metro Light Rail. Based on
the foregoing factors, I credit Nagler’s testimony over Arm-
strong’s, and find the conversation in question took place in De-
cember 2010.
Turning to the question of whether the comment created the
impression of surveillance, I find that it did. The Board has found
that an employee would reasonably assume that his union activ-
ities were under surveillance when an employer reveals specific
information about union activity that is not generally known, and
does not reveal its source. As the Board stated in Stevens Creek
Chrysler Jeep Dodge, 357 NLRB 633, 635 (2011), affd. sub
nom. Odwalla, Inc., 357 NLRB 1608 (2011):
When an employer tells employees that it is aware of their un-
ion activities, but fails to tell them the source of that infor-
mation, the employer violates Section 8(a)(1). This is because
employees are left to speculate as to how the employer obtained
its information, causing them reasonably to conclude that the
information was obtained through employer monitoring.
See also North Hills Office Services, 346 NLRB 1099, 1103
(2006) (employer’s failure to identify employee source of infor-
mation was the “gravamen” of an impression of surveillance vi-
olation); Sam’s Club, 342 NLRB 620, 620–621 (2004) (store
manager told employer he had heard the employee was circulat-
ing a petition about wages without revealing how he came by the
information); Conley Trucking, 349 NLRB 308, 315 (2007);
Dallas & Mavis Specialized Carrier Co., 346 NLRB 253, 254
(2006). In the instant case, Nagler’s union activity was not open
or publicized. Under these circumstances, employees, including
Nagler, would reasonably assume that their union activities were

48 See also Tr. 335, LL. 12–15. The tone of Armstrong’s voice notice-
ably changed when specifically asked if he had knowledge of Union ac-
tivity in December 2010. Tr. 335, L. 16.
under surveillance, and therefore Armstrong’s statement vio-
lated Section 8(a)(1).
The General Counsel next alleges that on February 11, 2011,
Armstrong told employees that union activities would be inves-
tigated, threatened employees with reprisals for engaging in un-
ion activities, interrogated employees about concerted protected
activities, and threatened employees with discharge for speaking
about discipline.
I will begin by discussing the alleged interrogations. Pablo in-
structed Armstrong to investigate whether Rice approached em-
ployees about union membership. In assessing the lawfulness of
an interrogation, the Board applies the totality of circumstances
test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20
(1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). This test involves a case-by-case analysis of var-
ious factors, including those set out in Bourne v. NLRB, 332 F.2d
47, 48 (2d Cir. 1964): (1) the background, i.e., whether the em-
ployer has a history of hostility toward or discrimination against
union activity; (2) the nature of the information sought, i.e.,
whether the interrogator appears to have been seeking infor-
mation on which to base taking action against individual employ-
ees; (3) the identity of the interrogator, i.e., his or her placement
in the Respondent’s hierarchy; (4) the place and method of the
interrogation; and (5) the truthfulness of the interrogated em-
ployee’s reply. As to the fifth factor, employee attempts to con-
ceal union support weigh in favor of finding an interrogation un-
lawful. See, e.g., Sproule Construction Co., 350 NLRB 774, 774
fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877
fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The
Board also considers whether the interrogated employees are
open and active union supporters. See, e.g., Gardner Engineer-
ing, 313 NLRB 755, 755 (1994), enfd. as modified on other
grounds 115 F.3d 636 (9th Cir. 1997). These factors “are not to
be mechanically applied”; they represent “some areas of inquiry”
for consideration in evaluating an interrogation’s legality.
Rossmore House, supra, 269 NLRB at 1178 fn. 20.
While some of the Bourne factors weigh against Respondent,
the overwhelming evidence shows that Armstrong’s inquiries
were part of a narrowly-tailored and legitimate investigation to
determine whether a supervisor was involved in union organiz-
ing activities. The General Counsel asserts that by asking em-
ployees if they had discussed the Union with Rice, Armstrong
also interrogated employees as to whether they discussed the Un-
ion. (GC Br. 42.) This is not so. No evidence was presented that
any of the employees were asked whether they discussed the Un-
ion with Rice, whether supported the Union, whether they ac-
cepted any material from Rice or anyone else, or any other infor-
mation unrelated strictly to Rice’s involvement. Evidence from
Respondent, by contrast, shows that the inquiry was limited only
to whether Rice approached the employees to advocate for the
Union. (Tr. 554; R. Exh. 7.)
The General Counsel’s reliance on Campbell Soup Co., 225
NLRB 222, 226 (1976), is misplaced. In that case, the employer
asserted it had a good-faith belief that two individuals it ques-
tioned about union activities were supervisors. It provided no
justification, however, for questions directed at determining
which other employees were engaging in statutorily protected
49 Nagler was terminated for having too many writeups, but there was
not evidence presented to establish that he thought this was unjust or that
he otherwise held a grudge against Respondent in general or Armstrong
in particular. As of the hearing, he was working for a different employer.
G4S SECURE SOLUTIONS (USA) INC. 37
activities. Here, there were no questions asked whether any em-
ployees, other than Rice, a known supervisor, engaged in union
activities. The General Counsel also relies on Lindsay Newspa-
pers, Inc., 130 NLRB 680, 687 (1961). There, however, the com-
pany’s attorney, in transcribed interviews, asked questions about
who started the union’s organizing campaign, who passed out
union pamphlets and authorization cards, the extent to which
each employee participated in passing out union authorization
cards, and various other questions that ultimately revealed the
identity of the principal employee union advocate. Nothing even
approaching this type of interrogation took place here. Because
I find that Armstrong’s inquiries were not unlawful interroga-
tions, but instead were part of a legitimate and narrowly-tailored
investigation, I recommend dismissal of these complaint allega-
tions.
The General Counsel alleges that on the same date, February
11, 2011, Armstrong threatened employees, under penalty of dis-
charge, not to talk to Rice.50 In determining whether statements
amount to threats of retaliation, the Board applies the test of
“whether a remark can reasonably be interpreted by an employee
as a threat.” The actual intent of the speaker or the effect on the
listener is immaterial. Smithers Tire, 308 NLRB 72 (1992). The
Board has held that employees have a Section 7 right to discuss
discipline or disciplinary investigations involving fellow em-
ployees. See Caesar’s Palace, 336 NLRB 271 (2001); see also
Verizon Wireless, 349 NLRB 640, 658–659 (2007) (prohibiting
employee discussion of workplace concerns relating to discipline
abridges Section 7 rights). Armstrong’s instruction to employees
not to speak with Rice, which were not rescinded after Rice was
demoted from supervisor to employee, explicitly interferes with
that right and violates Section 8(a)(1).51 I also find that, given all
that was going on with respect to the union organizing campaign,
employees, and particularly Wickham, would reasonably per-
ceive the comment as a threat.
The last allegation related to Armstrong’s February 11 con-
duct is that by telling employees Respondent was investigating
Rice’s union activities, a reasonable employee would believe his
or her union activities were also being investigated. This allega-
tion is not supported. Wickham, Robles, and Taresh all testified
that Armstrong told them Rice had been suspended and they
were not to have contact with him. (Tr. 370, 394, 553.) No evi-
dence was presented regarding an investigation. Accordingly, I
recommend dismissal of this complaint allegation.
Finally, the General Counsel asserts that on March 2, 2011,
Armstrong threatened Sterling for her union and/or protected
concerted activities by telling her he had an issue with her be-
cause each of the three times she used sick leave during the pre-
vious year and a half, she had overtime scheduled. Sterling had
left her shift early the prior day, which was the day of the union
election. Sterling responded that she always worked overtime.

50 Wickham is the only employee who testified that this threat was
under penalty of discharge. Taresh and Robles both testified that they
were simply told not to have contact with Rice. For reasons discussed
herein, however, this distinction is immaterial.
51 This finding explicitly does not address the General Counsel’s alle-
gation that Respondent maintained and promulgated a rule against dis-
cussing discipline. Instead, I find that Armstrong’s statement interfered
with the right of employees to discuss discipline or other Sec. 7 topics
with their fellow employee Rice. I do not find it was a rule.
52 Banuelos’ testimony is not hearsay as it is an admission of a party
opponent under Fed.R.Ev. 801(d)(1). See Kamtech, Inc., 333 NLRB
242, 242 fn. 4 (2001).
(Tr. 520–521.) Respondent does not dispute that Sterling en-
gaged in protected concerted activity and that Armstrong knew
about it. (R. Br. 12.) While the comment alone is not inherently
threatening, I find its timing would cause a reasonable employee
to perceive it as such. Accordingly, I find the comment violates
Section 8(a)(1) of the Act.
3. PAA Supervisor Dustin Jiminez
The General Counsel alleges that on March 29, 2011, PAA
Supervisor Jiminez threatened employees and created the im-
pression of surveillance when he told Officer Banuelos that
Pablo said he would not rehire union supporters. Jiminez was not
called as a witness to refute this statement. Pablo denied he made
any such comment. Regardless of whether Pablo made the com-
ment, Jiminez conveying it to Banuelos is reasonably construed
as a threat and creates the impression of surveillance.52 I found
Banuelos to be a very credible witness based on her steady and
open demeanor, and her clear recollection of the events at issue.
Moreover, the Board has recognized that the testimony of a cur-
rent employee which contradicts statements of her supervisors is
likely to be particularly reliable because these witnesses are tes-
tifying adversely to their pecuniary interests. Gold Standard En-
terprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131
NLRB 1304 fn. 2 (1961); Gateway Transportation Co., 193
NLRB 47, 48 (1971); Federal Stainless Sink Div. of Unarco In-
dustries, Inc., 197 NLRB 489, 491 (1972). Accordingly, I credit
Banuelos’ testimony and I find Jiminez’ comments violated the
Act.
4. Human Resources Manager Janelle Kercher
The General Counsel alleges that on April 7, 2011, Kercher
promulgated and reinforced the unlawful confidentiality rule
when she testified, at Wickham’s unemployment compensation
hearing, that information related to employee discipline was con-
fidential.53 Kercher explained that any documentation related to
employee discipline is in the employee’s personnel file, which is
confidential. (Tr. 162–163.) Kercher’s comment must be viewed
in light of her position as human resources manager. In that ca-
pacity, she must maintain and secure employee personnel files
which, as Respondent correctly asserts, are confidential. As a
general rule, Kercher is not permitted to share information in em-
ployee personnel files with others. There is no allegation that she
stated employees cannot discuss discipline with each other.
Viewed in context, I find this comment was not promulgation or
reinforcement of Respondent’s overly-broad confidentiality pro-
vision.54 I therefore recommend dismissal of this complaint alle-
gation.
53 The revised employee handbook, which removed employee disci-
pline from the confidentiality policy, had been issued at this point in re-
sponse to the charges filed. Kercher was clearly aware that employees
were not prohibited from discussing discipline.
54 The General Counsel alleged that Kercher’s testimony at Wick-
ham’s unemployment compensation hearing reaffirmed and enforced the
confidentiality provision in the security officer handbook (complaint al-
legation 5(b)) and that it reaffirmed and enforced a rule prohibiting em-
ployees from speaking about their discipline (complaint allegation 5(g)).
Since there was not evidence of a separate rule prohibiting discussion of
discipline (either oral or written), aside and apart from the handbook con-
fidentiality provision, I find the latter subsumes the former.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
C. Employee Discipline
1. The 8(a)(1) allegation: Debra Sterling warnings
The General Counsel alleges that Respondent violated Section
8(a)(1) of the Act by issuing a final warning and then a written
warning to Debra Sterling. The General Counsel has the burden
to prove this allegation by preponderant evidence.
Respondent concedes, and I find, that Sterling engaged in pro-
tected concerted activity, which is detailed fully in the statement
of facts. Once the activity is found to be concerted, the General
Counsel can establish a prima facie case by proving the employer
knew of the concerted nature of the employee’s activity, the con-
certed activity was protected by the Act, and the adverse employ-
ment action at issue was motivated by the employee’s protected
concerted activity. Meyers Industries, 268 NLRB 493, 497
(1984); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). If the General Counsel is able to make such a showing,
the burden of persuasion shifts to the employer “to demonstrate
that the same action would have taken place even in the absence
of the protected conduct.” Wright Line, supra at 1089; See also
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
Respondent concedes knowledge of Sterling’s protected con-
certed activity. The first contested issue is whether the General
Counsel has met its burden to prove that Respondent was moti-
vated by Sterling’s protected concerted activities. Improper em-
ployer motivation is often established by circumstantial evidence
and may be inferred from several factors, including: the Re-
spondent’s known hostility toward unionization coupled with
knowledge of an employee’s union activities; pretextual and
shifting reasons given for the employee’s discharge; the timing
between an employee’s union or other protected activities and
the discharge; and the failure to adequately investigate alleged
misconduct. Temp Masters, Inc., 344 NLRB 1188, 1193 (2005);
Promedica Health Systems, 343 NLRB 1351, 1361 (2004). Dis-
criminatory motive may also be established by showing depar-
ture from past practice or disparate treatment. See JAMCO, 294
NLRB 896, 905 (1989), affd. mem. 927 F.2d 614 (11th Cir.
1991), cert. denied 502 U.S. 814 (1991); Naomi Knitting Plant,
328 NLRB 1279, 1283 (1999). As stated in Shattuck Denn Min-
ing Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966), “it is sel-
dom that direct evidence will be available that is not also self-
serving. In such cases, the self-serving declaration is not conclu-
sive; the trier of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of unlawful motive
who took the stand and testified to lawful motive could be
brought to book.”
Respondent asserts that evidence of animus is absent because,
after looking into the matter, Kercher reduced Sterling’s final
warning to an oral warning. This explanation, however, does not
show why Sterling received the final warning in the first place.
It is clear, and Kercher conceded, there was confusion over
whether all overtime was canceled for everyone, or whether it
was canceled only for patrol officers during the week at issue.
Sterling’s testimony that Eggleston told her all overtime was
canceled is unrebutted, despite the fact that Eggleston testified at

55 Sterling corroborates Rice’s testimony about the whiteboard and
schedule book. (Tr. 508-509.)
the hearing. Rice’s testimony that the whiteboard where over-
time was posted had a notation stating “No overtime this week”
for the week at issue is likewise unrebutted, as is his testimony
that Sterling was not listed in the schedule book for the date in
question.55 Rice’s testimony was very specific in this regard. He
recalled that Clemons told him there was a new hire, and that
was the reason the overtime was canceled. In addition, Rice in-
formed Armstrong that he did not think Sterling was a no-
call/no-show. (Tr. 459–461.)
Notwithstanding the confusion over whether Sterling was
scheduled to work, Respondent has not identified other employ-
ees who received a final warning for their first no-call/no-show.
The General Counsel, by contrast, presented evidence of dispar-
ate treatment in that: (1) Juan Castro received an oral warning
for his first unexcused absence and a written warning for his sec-
ond; (2) Keegan McManus received either an oral or written
warning for his first unexcused absence; and (3) Carlton Snead
received a final warning after three consecutive unexcused ab-
sences. (GC Exh. 38.) Sterling’s receipt of a final warning, when
she previously had a clean record with no history of discipline,
shows she was treated less favorably than comparative employ-
ees.
In addition, Rice testified that Armstrong told him Operations
Manager Ed Martini was mad at Sterling and wanted her fired.56
(Tr. 463.) This is corroborated by Sterling, who testified that
Armstrong told her Martini had wanted her fired for the no-
call/no-show, but Armstrong had talked him out of it. (Tr. 509–
510.) Martini did not testify to rebut this, and Armstrong did not
rebut this during his testimony. Respondent has presented no ev-
idence as to why Martini would be mad at her other than for her
protected concerted activity, including the hotline complaint she
had filed 5 months prior to her discipline, and her still-active sex-
ual harassment lawsuit against Respondent. Based on the fore-
going, I find the General Counsel has established, by preponder-
ant evidence, the animus required to establish a prima facie case.
Respondent must now prove that it would have issued the
warnings even absent Sterling’s protected concerted activity.
Armstrong’s explanation for the discipline was that Sterling’s
no-call/no-show cost Respondent money on the contract. Given
that other employees did not receive a final warning for this in-
fraction, however, this explanation does not hold up. Respondent
argues that no harm occurred because Sterling’s discipline was
reduced to a final warning, to which Sterling agreed. There is no
dispute that the discipline was reduced to an oral warning. Ster-
ling does dispute that she agreed to it, however. Kercher testified
that Sterling was satisfied with the oral warning. That may have
been Kercher’s impression at the meeting where she reduced
Sterling’s discipline. Regardless, the fact that charges ensued, a
complaint was filed, and the issue of Sterling’s discipline went
to hearing, demonstrates that this could not reasonably have re-
mained Kercher’s impression. In any event, the fact that the dis-
cipline was reduced does not provide an explanation as to the
motivation behind the original discipline. Airborne Freight
Corp., 343 NLRB 580, 621 (2004), presented a similar issue and
is instructive on this point. In that case, the employee was issued
a letter of warning that was, upon further inquiry, rescinded. The
Board upheld the judge’s finding that the letter of warning vio-
56 Martini’s statements are not hearsay under Fed.R.Evid.
801(d)(2)(A). That it is hearsay within hearsay does not change this.
Fed.R.Evid. 805. See Kamtech, Inc., 333 NLRB 242, 242 fn. 4 (2001) .
G4S SECURE SOLUTIONS (USA) INC. 39
lated the Act despite its later rescission. Similarly, the later re-
duction of the discipline in Sterling’s case does not negate it. Be-
cause Sterling’s discipline was tainted by retaliatory animus, I
find it violates the Act and should be rescinded.
2. The 8(a)(1) and (3) allegations
a. Danny Rice transfer and isolation
The General Counsel alleges that Respondent violated Section
8(a)(1) and (3) of the Act when it transferred Rice away from the
Metro Light Rail account and isolated him from other employ-
ees. The Wright Line analysis, set forth above, applies to allega-
tions of retaliation under Section 8(a)(3). Rather than protected
concerted activity, however, the knowledge and motivation to
establish a prima facie case for this allegation relate to union ac-
tivity.
Because Rice was a supervisor when he was demoted from his
lieutenant position, the General Counsel concedes he was not, at
that point, covered by the Act. The decision to transfer Rice away
from the Metro Light Rail was contemporaneous with the deci-
sion to demote him, both occurring at the February 14, 2011
meeting with Pablo and Kercher. (Tr. 112.) The transfer away
from the Metro Light Rail therefore is likewise not covered by
the Act because of Rice’s supervisory status at the time of the
decision.
The remaining question is whether Respondent isolated Rice
in response to his union activity or in a manner that might rea-
sonably tend to interfere with the free exercise of employee
rights under Section 7. I find the General Counsel has not met its
burden of proof on either score. Rice was initially placed at the
Tempe Water Treatment facility, and then when he complained
he was not getting enough hours, he was transferred to a Cricket
store where he is the only officer on his shift.57 Of the roughly
60 accounts in the Phoenix Metro area, there was not evidence
presented regarding how many accounts other than the Metro
Light Rail have multiple officers assigned per shift. Without this
evidence, it is not possible to determine whether this decision
was a retaliatory attempt to isolate Rice. There was likewise no
evidence presented to show which assignments the officers gen-
erally viewed as desirable, neutral, or punitive. Such a showing
would indeed be hard to make given the high degree of subjec-
tivity involved. The Cricket store officers, unlike the Metro Light
Rail officers, are armed, which some may associate with greater
status, but some may see as an unwanted added degree of respon-
sibility. In any event, without evidence to show the Cricket store
assignment was objectively punitive or was generally subjec-
tively viewed as punitive, Respondent’s assignment of Rice there
does not send the message, as the General Counsel contends, that
prounion employees will be dealt with adversely.
The General Counsel points to Masiongale Electrical-Me-
chanical, 331 NLRB 534 (2000), for support. In that case, the
employee was removed from the jobsite, directed to work in a
storage garage where there was no workstation. The employee
made his workbench from some sawhorses and plywood. The
supervisor then approached him and said he “did not want him
talking about the union to his employees, handing out literature,
and did not want him to talk to his employees about the union on
the job, in his office or on his property.” He also said, “that he
did not want the union, they messed with me before.” The em-

57 The transfer to the Cricket store resulted in a pay raise, but Rice still
made less than when he was a supervisor at the Metro Light Rail.
ployee responded that he was going on strike, and when he re-
turned to the garage, it was again being used as a storage facility.
I need not belabor contrasting this with the Cricket store assign-
ment. The General Counsel also points to Zimmerman Plumbing
& Heating Co., 325 NLRB 106, 114 (1997), where the employee
was reassigned to the same jobsite as the owner’s son, who also
became his supervisor. This is readily distinguishable from the
instant case, as are the two other cases the General Counsel
points to for support. St. Regis Paper Co., 255 NLRB 529 (1981)
(personnel manager admitted he transferred two mechanics
based on their union membership); Triangle Publications, Inc.
204 NLRB 651 (1973) (two employees transferred to another
plant that shut down 2 months later).
Based on the foregoing, I find that Respondent did not violate
the Act by transferring and isolating Rice, and I therefore recom-
mend dismissal of these complaint allegations.
b. Donald Wickham termination
The final allegation is that Donald Wickham was terminated
because of his union and/or protected concerted activity in vio-
lation of Section 8(a)(1) and (3) of the Act. I find the preponder-
ant evidence shows Wickham’s termination was retaliatory for
the reasons discussed below.
As noted, the elements commonly required to support a find-
ing of discriminatory motivation are union or other protected ac-
tivity, employer knowledge, and employer animus. Farmer
Bros. Co., 303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120
(9th Cir. 1993).
I will first address the General Counsel’s assertion that Wick-
ham’s statement to Armstrong and Clemons in late Novem-
ber/early December 2010, that Respondent would have trouble
getting officers to cover special events because of how they paid,
was protected concerted activity. I find that it was not. The
Board has held that activity is concerted if it is “engaged in with
or on the authority of other employees, and not solely by and on
behalf of the employee himself.” Meyers Industries (Meyers I),
268 NLRB 493 (1984), revd. sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on re-
mand Meyers Industries (Meyers II), 281 NLRB 882 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). Concerted activity also in-
cludes “circumstances where individual employees seek to initi-
ate or to induce or to prepare for group action” and where an
individual employee brings “truly group complaints to manage-
ment’s attention.” Meyers II, 281 NLRB at 887. In this case,
Wickham was not acting “with or on the authority of” other em-
ployees. He was responding to Armstrong’s statement that he
needed to work special events. Wickham testified that he and
other employees had discussed their disapproval of the pay scale
for special events. The General Counsel has not shown, however,
that Wickham expressed to Armstrong or Clemons that this was
his fellow employees’ viewpoint or that he was acting on behalf
of other employees when he told Armstrong that he would have
trouble getting employees to work special events. There is no
evidence that Wickham was seeking to initiate or to induce oth-
ers to prepare for group action. Accordingly, I find that Wickham
was not engaged in protected concerted activity when he told
Armstrong and Clemons it would be difficult to find employees
to work special events because of the pay.58
58 I find, however, that the meeting in late November or early Decem-
ber, where Armstrong cleared the room and lectured Wickham about the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
Turning to Wickham’s union activity, there is no dispute that
Wickham was in charge of the campaign to unionize the employ-
ees at the Metro Light Rail. Respondent asserts, however, that
Pablo, who decided to terminate Wickham, did not know of his
union activity. It is well settled that knowledge of an employee’s
union activity may be established by reasonable inference. Wind-
sor Convalescent Center of North Long Beach, 351 NLRB 975,
983 fn. 36 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir.
2009). See also Clark & Wilkins Industries, 290 NLRB 106
(1988). Circumstantial evidence, including the timing of the al-
leged discriminatory action and the submission of pretextual rea-
sons in support of it will support a finding of employer
knowledge even in the absence of direct evidence of such. See
Medtech Security, Inc., 329 NLRB 926, 929–930 (1999) (cir-
cumstantial evidence, including timing, general knowledge of
union activity and pretext, supported finding of employer
knowledge); Darbar Indian Restaurant, 288 NLRB 545 (1988)
(finding of knowledge based on employer’s general knowledge
of union activity, the timing of the discharge, the 8(a)(1) viola-
tions found, and pretext given). The Board has held that a super-
visor’s knowledge of union activities is imputed to an employer
absent a credible denial of such knowledge. See 0State Plaza,
Inc., 347 NLRB 755, 756–757 (2006); and Dobbs International
Services, 335 NLRB 972, 973 (2001).
For the reasons detailed above, I find that Lieutenants Taylor
and Clemons were aware of Wickham’s union activity, and that
Major Armstrong was aware of the union campaign in general.
Eggleston, who testified, did not refute Rice’s testimony that he
had told him about the union campaign prior to the time Re-
spondent officially acknowledged it. The testimony that Lieuten-
ant Taylor knew about the Wickham’s union activity, and asked
Wickham if he had heard from the Mickey Mouse Club, is like-
wise unrefuted. Rice also obviously knew about Wickham’s un-
ion activity. Accordingly, the evidence establishes that three
lieutenants knew about Wickham’s union activity specifically,
and two other lieutenants and the major knew about the union
organizing campaign generally.
As Respondent points out, Rice was clearly not acting on man-
agement’s behalf with regard to the organizing campaign. There
can be no doubt that Rice did not communicate Wickham’s in-
volvement to higher management. I find, nonetheless, that
Pablo’s denial of knowledge cannot be credited. Beginning with
Armstrong, he knew about the union campaign at least as of De-
cember 2010. As Pablo’s project manager for the Metro Light
Rail, this is plainly the type of information he would convey up
the chain if he was minimally doing his job. The same holds true
for the lieutenants. If they were doing their jobs, they would have
informed higher management of the union organizing campaign.
Clemons’ February 4, 2011 memorandum to Armstrong is par-
ticularly troubling. It shows Clemons had known that Rice, a su-
pervisor, has been involved in the union campaign for the past
few weeks. (R. Exh. 5.) Given that Rice was a supervisor,

need to work special events, is further evidence that Wickham was not,
in management’s eyes, the innocuous employee he was claimed to be.
Why Wickham, Eggleston’s “go to guy” for overtime, was singled out
for this meeting is not explained.
59 In his memo, Clemons notes that Rice was “taking the approach as
if he’s not involved because he is a supervisor.” (R. Exh. 5.)
60 As the General Counsel points out, the union conversations and dis-
tribution of union information took place at the kiosks, which have secu-
rity cameras.
Clemons would have had a duty to report his involvement in un-
ion organizing, as it amounted to misconduct.59 His decision to
wait 4r weeks to do so is not explained. Clemons wrote his memo
on February 4, the same day he reported finding Wickham sleep-
ing. That same day, Pablo sent the memo to the officers about
the union petition and held his “TIPS” meeting with the supervi-
sors. The timing of Clemons’ memo is thus highly suspicious.
The credible, specific and corroborated evidence of knowledge,
detailed above, simply outweighs the many blanket denials of
knowledge at all levels of management, particularly in light of
the implausible lapses by supervisors and managers that would
have needed to occur for Pablo to remain in the dark. Under these
circumstances, I cannot credit Pablo’s denial of the union cam-
paign in general or Wickham’s involvement in particular.60
Based on the foregoing, I find the General Counsel met its bur-
den to prove that knowledge of Wickham’s union activity is
properly imputed to Respondent.
The General Counsel next must establish union animus. The
legal standards for proving animus based on circumstantial evi-
dence, articulated above in the analysis of Debra Sterling’s dis-
cipline, apply here.
Looking at the evidence as a whole, I find the General Counsel
has persuasively established unlawful motivation. First, the tim-
ing of Wickham’s termination occurred on February 4, 2011, just
4 days after Pablo received official word from the Corporate le-
gal department about the union petition, and less than a month
before the upcoming union election. In addition, as the General
Counsel points out, there are problems with Eggleston and
Clemons’ accounting of events.61 Most significantly, Eggleston
testified that Clemons walked around to the front window where
he had a direct view of Wickham sleeping. Clemons testified he
only stood behind Clemons and looked in the window on the
door, which was not a head-on view. They differed on their ac-
counts of how Wickham came to the door. Did he slide over on
his chair, as Clemons recalled, or did he stand up and walk over,
as Eggleston recalled? Wickham was wearing a winter jacket and
a winter hat, and the lieutenants viewed him from the side
through a window. Given that Eggleston and Clemons differed
on how Wickham answered the door, which would be much
more discernible than whether he was sleeping, I find that the
reliability of these eyewitness accounts is shaky.
There is also significant evidence of pretext. Pablo justified
Wickham’s termination by stating it was his policy, as general
manager, to terminate all employees caught sleeping on duty.
This is problematic on several fronts.
First, the General Counsel pointed to evidence that other of-
ficers were not terminated the first time they were caught sleep-
ing on duty. Thus if Pablo’s policy existed, it was either not ef-
fectively communicated, inconsistently enforced, or both. Lieu-
tenant Rice and Major Thario apparently were unaware that
sleeping on duty automatically meant termination as of Novem-
ber 12, 2009. On that date, Rice, at Thario’s direction, issued Hill
an oral warning for sleeping on duty.62 (Tr. 154, 472–474; GC
61 The General Counsel points to testimony at Wickham’s unemploy-
ment compensation that contains details not set forth in the reports. Pre-
sumably the testimony was responsive to specific questions asked, and
therefore would tend itself to be more specific. I therefore don’t find this
evidence persuasive in and of itself.
62 Rice was not yet involved in union organizing at this point in time.
G4S SECURE SOLUTIONS (USA) INC. 41
Exh. 19.) In the face of this evidence, Respondent points to
Rice’s testimony admitting that he knew only Pablo could au-
thorize terminations. (Tr. 484.) This argument is off point, how-
ever. Rice’s immediate supervisor, Thario, instructed him to is-
sue the oral warning. There was no testimony that either Rice or
Thario, despite knowing only Pablo could authorize termina-
tions, perceived Hill’s infraction of sleeping on duty as warrant-
ing or requiring termination.
John D’Ancona’s supervisor (whose signature is illegible) is-
sued him a final warning on August 8, 2008, for sleeping at his
desk. (GC Exh. 23.) Kalin Trotter’s supervisor issued him a writ-
ten warning for sleeping on duty on September 3, 2008. (GC
Exh. 28.) Sheletha Randell and Benjamin Berry were also caught
sleeping on duty but not terminated for it on the first offense.
(GC Exhs. 27, 29.) Even if Pablo was somehow not aware of
these incidents, there is no evidence that any of these supervisors
were disciplined for failing to abide by Pablo’s policy once the
infractions were discovered. I therefore infer that they did not
know about it, or they knew it was amenable to selective enforce-
ment.63
The evidence also shows that Eggleston did not think Wick-
ham’s sleeping on duty would result in automatic termination.
The afternoon of February 4, Wickham asked Eggleston if there
were going to be any repercussions based on what occurred ear-
lier, and Eggleston told Wickham, “No, I wouldn’t think so.”
Wickham worked four more regular shifts. A few days after the
February 4 events, Eggleston called Wickham and offered him
two more overtime shifts, which Wickham accepted. Eggleston’s
actions are not those of a supervisor operating under a belief that
his employee is facing certain imminent termination.64
With regard to Brian Pike, he was given a final warning after
the client sent a letter, copied to Pablo, that he had twice been
seen sleeping on duty. Pike received a final warning initially, as
opposed to Wickham’s suspension. He was only removed after
Pablo investigated and reviewed videos from a security camera
that clearly showed Pike sleeping. Here, Pablo never reviewed
the video camera footage, and that footage did not show Wick-
ham at all, much less clearly establish that he was sleeping. In
addition, unlike Wickham, Pike had a prior infraction for using
foul language and being disrespectful, and was seen sleeping
twice. Pike’s situation is therefore meaningfully distinguishable
from Wickham’s.
Some of the explanations about why certain employees were
not terminated for sleeping on duty also indicate pretext. Timo-
thy Causey was initially discharged on January 15, 2010, for
sleeping on duty while working at McClane Sunwest. For rea-
sons unexplained, as of March 3, he was working for Respondent
at the Union Pacific Railroad jobsite. That day, he had an acci-
dent with his truck, said he was sleepy and could not drive, and
left the jobsite without telling anyone. Causey’s termination was
changed to a 90-day suspension because Kercher learned he was
taking pain medication for dental problems. This chain of events

63 Kercher’s testimony that she had trouble getting operations to fol-
low policies pertaining to personnel actions does not negate this infer-
ence. Had Respondent been serious about ensuring compliance, there
would logically have been consequences for noncompliance.
64 At the time of the hearing, Eggleston was still employed by Re-
spondent, but had been removed from his duties for alleged insubordina-
tion. At the time he offered Wickham the overtime shifts, however, this
had not yet occurred.
65 Kercher testified that Jiminez had pointed out to her where the light
came on when the two of them viewed the tape together. At the hearing,
makes no sense. Causey slept on duty on January 15, ostensibly
due to being medicated. He therefore committed infractions that
are grounds for termination under the security officer handbook
for sleeping or gross inattentiveness while on duty, as well as
intoxication on the job or reporting to work in an impaired state.
Then, on March 3, he got in an accident, said he was too sleepy
to drive, and left the jobsite without authorization. The explana-
tion for treating Causey, who had several infractions, including
sleeping on duty, more favorably than Wickham, who had a sin-
gle infraction, seriously strains credibility.
John Stone was observed sleeping on duty on three occasions
during the week of March 15, 2010, and the client, Lowes, asked
that he be removed from the jobsite. Under supervisor’s remarks,
the typewritten note states, “Removed from the site and given a
written warning. Any violations of the rules will cause your ter-
mination from the company.” Beneath the typewritten remarks,
Kercher wrote, in pen and ink, “Allegations were unfounded—
No proof.” (GC Exh. 24.) Clearly, the initial discipline contem-
plated was removal from the site and a written warning, not sus-
pension pending investigation as in Wickham’s case. As for
Kercher’s comment that there was no proof Stone was sleeping,
this introduces an inconsistency with Wickham’s situation, and
casts a highly suspicious light on Respondent’s shifting explana-
tions for Wickham’s termination. Kercher wrote that she did not
have proof that Stone was sleeping on duty, despite the notation
that he was observed sleeping on duty three times. The individual
who observed him either was a supervisor or had reported it to
one of Respondent’s supervisors, hence the writeup. This report
was sufficiently believable to have Stone removed from the
jobsite. Yet Stone was not terminated.
The explanation Respondent provided contemporaneous with
Wickham’s termination was that the security videotape at the
Price & Apache kiosk showed him sleeping. Specifically, the ter-
mination notice, in the section entitled “Reason(s) for Discipli-
nary Action,” states, “This tape clearly showed no movement in-
side the Kiosk for this duration of time indicating that the officer
inside was asleep or not attending to his duties. The light should
always be on in the Kiosk so Security presence is noted at all
times.” (GC Exh. 18.) It was clear, however, after viewing the
tape at the hearing, that the lighting never changed in the kiosk,
even when Clemons and Eggleston entered it.65 Thus, the reli-
ance on the light sensors’ failure to activate the lights to prove
Wickham’s lack of movement no longer held up. Kercher then
testified that, contrary to the reason stated on the termination no-
tice, the video played very little role in the decision to terminate
Wickham. Such shifting of rationales is evidence that the Re-
spondent’s proffered reasons for terminating Wickham are pre-
textual. See Approved Electric Corp., 356 NLRB 238, 239–240
(2010) (citing City Stationery, Inc., 340 NLRB 523, 524 (2003)
(nondiscriminatory reasons for discharge offered at the hearing
were found to be pretextual where different from those set forth
in the discharge letters); GATX Logistics, Inc., 323 NLRB 328,
there was no change in lighting discernable to the naked eye, and Kercher
testified she and Jiminez did not use any enhanced equipment. Jiminez
did not testify at the hearing, and therefore could not corroborate this
testimony. When relevant evidence which would properly be part of a
case is under the control of the party whose interest it would be to pro-
duce it and this party fails to do so without satisfactory explanation, the
trier of fact may draw an inference that such evidence would have been
unfavorable to that party. See Martin Luther King, Sr. Nursing Center,
234 NLRB 15 (1977). (NOTE: I cannot find this cite?)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
335 (1997) (“Where . . . an employer provides inconsistent or
shifting reasons for its actions, a reasonable inference can be
drawn that the reasons proffered are mere pretexts designed to
mask an unlawful motive.”). Kercher’s testimony after viewing
the videotape at the hearing was that she based Wickham’s ter-
mination on Clemons’ and Eggleston’s accounts of what oc-
curred. Other individuals, including Stone, were given the bene-
fit of the doubt absent objective proof. The failure to accord
Wickham the same, particularly in light of the other evidence
discussed above, amounts to disparate treatment.
Another factor to consider is the adequacy of the Respond-
ent’s investigation. Alstyle Apparel, 351 NLRB 1287, 1287–
1288 (2007). The General Counsel conclusively proved that the
videotape at the Price & Apache kiosk did not show Wickham
sleeping, and Kercher’s most recent testimony is that the deci-
sion to terminate Wickham was made before she even viewed
the videotape. Therefore analysis of the investigation turns to
Respondents’ other actions. Kercher issued Wickham’s suspen-
sion before giving him an opportunity to give his side of the
story. He was then given his termination notice in a meeting with
Kercher and Armstrong on February 14, 2011. He was not inter-
viewed about what happened that day. Respondent solicited
statements from Clemons and Eggleston for statements, but did
not solicit one from Wickham. Pablo, the decisionmaker, did not
speak with Clemons, Eggleston, or Wickham, nor did he review
the videotape. Respondent merely accepted as fact the lieuten-
ants’ reports, one of which was solicited 5 days after the fact. I
find, therefore, that the investigation was not adequate.
Finally, Pablo offered no explanation as to why he singled out
sleeping on duty as the infraction that would, as a matter of his
own policy, result in automatic dismissal. The behavior stand-
ards manual and security officer handbook set forth at least 21
types of prohibited conduct that can lead to immediate dismissal.
The General Counsel has established that, during Pablo’s tenure
as general manager beginning in June 2008, other officers were
not terminated for engaging in conduct that per company policy
is grounds for immediate dismissal. These are detailed below,
followed by reference to the corresponding number assigned to
the violation in the security officer handbook (SOH).
Brian Pike received a written warning on June 18, 2009, for
using foul language and being disrespectful. (SOH #2). John
D’Ancona was disciplined for numerous offenses that could be
grounds for immediate termination prior to his termination in
January 2010. He had slept on duty (at a time when Pablo was
on vacation), disobeyed orders multiple times both from Re-
spondent’s supervisors and the Bank of America site supervisor
(SOH #2), and left his post of duty without authorization (SOH
#18). Enoch Harmon received a suspension for a no-call/no-
show (SOH #11). Benjamin Berry was given three warnings for
unacceptable job performance (SOH #12), threatening to harm
another officer (SOH #3); a warning for dishonesty by attempt-
ing to call off on the first 4 hours of his shift (SOH #5); a final
warning for unacceptable job performance and unauthorized
opening of drawers/cabinets (SOH #12), and a suspension for
another no-call/no-show (SOH #11). Sheletha Randell received
a written warning for taking a personal call and talking on the
phone for several minutes (SOH #15). Respondent did not ex-
plain why strict termination attached to sleeping on duty but not
to other offenses listed as grounds for immediate dismissal in the
handbook and behavior standards manual.
Based on the foregoing, I find the General Counsel has estab-
lished a prima facie case. The burden of persuasion now shifts to
the Respondent to prove, by a preponderance of the evidence,
that it would have discharged Wickham even in the absence of
his union activity. Senior Citizens Coordinating Council of Co-
op City, 330 NLRB 1100, 1105, 1106 (2000); Monroe Mfg., 323
NLRB 24, 27 (1997). In order to meet this burden, the Respond-
ent is required to do more than show that it had a legitimate rea-
son for its actions. Black’s Railroad Transit Service, 342 NLRB
549, 557 (2004); Hicks Oil & Hicksgas, Inc., 293 NLRB 84, 85
(1989), enfd. 942 F.2d 1140 (7th Cir. 1991). The employer must
also prove, by a preponderance of the evidence, that it would
have taken the same actions even in the absence of the em-
ployee’s protected activity. Peter Vitalie Co., Inc., 310 NLRB
865, 871 (1993).
I find that Respondent has not met its burden under Wright
Line, 251 NLRB 1083 (1980), of showing by a preponderance of
the evidence that the discharge would have taken place even ab-
sent Wickham’s union activity. The discussion on pretext above,
in support of the General Counsel’s prima facie case is hereby
incorporated. Respondent introduced evidence that, as of Octo-
ber 3, 2011, 32 employees had been terminated for sleeping on
duty since Pablo became general manager of the Phoenix area
office in June 2008. Respondent points out that 24 of these ter-
minations occurred prior to Wickham’s. (R. Exh. 21.) There is
no information, however, regarding whether or not these em-
ployees had prior infractions and/or whether their sleeping was
objectively verified. Without this information, it is not possible
to compare these employees to Wickham in any meaningful way.
Moreover, the evidence shows that employees were terminated
or chose to leave Respondent’s employment for a variety of rea-
sons. Finally, many of the infractions that led to termination in
Respondent’s Exhibit 21, such as unexcused absence, insubordi-
nation, unacceptable job performance, led to lesser discipline for
other officers, as discussed above. Accordingly, I find Respond-
ent has failed to meet its burden to prove that it would have ter-
minated Wickham absent his union activities.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining overly-broad rules as set forth
herein; threatening and interrogating employees, and giving
them the impression that their union activities were under sur-
veillance; and by disciplining Debra Sterling.
4. The Respondent violated Section 8(a)(1) and (3) of the Act
by terminating Donald Wickham.
5. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(3) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found the Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the poli-
cies of the Act, including the posting of the customary notice,
designed to effectuate the policies of the Act.
As I concluded that the contested parts of the security officer
handbook’s professional image rule, “no unnecessary conversa-
tions” provision, and confidentiality provisions, as well as the
social networking policy are unlawful, the recommended order
G4S SECURE SOLUTIONS (USA) INC. 43
requires that the Respondent revise or rescind it, and advise its
employees in writing that the rules have been so revised or re-
scinded.
Further, the Respondent having unlawfully disciplined Debra
Sterling will be ordered to restore the status quo ante and make
appropriate changes to her personnel files and/or other supervi-
sor-maintained files.
The Respondent having unlawfully terminated Donald Wick-
ham will be required to restore the status quo ante by making him
whole for any loss of earnings he may have suffered and offering
to reinstate him to the position he held before their unlawful ter-
mination or, if this position no longer exists, to a substantially
equivalent position without prejudice to seniority and other
rights and privileges. Backpay shall be based on earnings which
each such employee would have earned from February 10, 2011,
the date of his suspension preceding his termination. The back-
pay will be less net earnings during such period and shall be com-
puted on a quarterly basis, plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010), enf. denied on other grounds sub.nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended66
ORDER
The Respondent, G4S Secure Solutions (USA) Inc., Phoenix,
Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing the contested provisions of the
security officer handbook and the Social Networking Policy.
(b) Coercively interrogating any employee about the union
support or union activities of that employee or any other em-
ployee.
(c) Giving employees the impression employees’ union activ-
ities are under surveillance by management.
(d) Threatening employees with unspecified reprisals for en-
gaging in union activity.
(e) Disciplining employees for engaging in protected con-
certed activity.
(f) Terminating or otherwise disciplining employees for en-
gaging in union organizing efforts or other union activities.
(g) In any like or related 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 effectu-
ate the policies of the Act.
(a) Rescind and give no effect to the rules described above,
furnish employees nationwide with inserts for the current edition
of the G4S security officer handbook that advise that these un-
lawful rules have been rescinded, or provide the language of law-
ful rules; or, alternately, publish and distribute to all current em-
ployees employed by us nationwide a revised G4S security of-
ficer handbook that does not contain the unlawful rules, or pro-
vides the language of lawful rules; and take the same action with
regard to the Social Networking Policy.

66 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
67 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
(b) Within 14 days from the date of the Board’s Order, offer
Donald Wickham full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
(c) Make Donald Wickham whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her as specified in the remedy portion of this decision.
(d) Within 14 days from the date of the Board’s Order, remove
from its files any reference to Donald Wickham’s unlawful dis-
charge and discipline and within 3 days thereafter notify him in
writing that this has been done and that his discharge and illegal
discipline will not be used against him in any way.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discipline of Debra Sterling
and within 3 days thereafter notify her in writing that this has
been done and that the discipline will not be used against her in
any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records, and all other records, including an
electronic copy of such records if stored in electronic form, nec-
essary to analyze the amount of backpay due under this Order.
(g) Within 14 days after service by the Region, post at all its
Phoenix, Arizona area facilities copies of the attached notice
marked “Appendix A.”67 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since August 24, 2010. In
addition to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means.
(h) Within 14 days after service by the Region, post at all of
its facilities copies of the attached notice marked “Appendix
B.”68 Copies of the notice, on forms provided by the Regional
Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
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.”
68 See fn. 67, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed any stores outside the Phoenix area, the Respondent shall
duplicate and mail, at its own expense, a copy of the appropriate
notice to all current employees and former employees employed
by the Respondent at such facilities at any time since Au-
gust 24, 2010.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C, March 29, 2012.
APPENDIX A
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
You have the right to join with your fellow employees in con-
certed activities. These activities include, but are not limited to:
discussing wages, hours, and other working conditions with one
another; discussing concerns about the way you are treated at
work with one another; discussing our discipline policies and
practices with one another; and making concerted complaints
about supervisors and supervisors’ treatment of employees to
outside agencies such as the United States Equal Employment
Opportunity Commission.
WE WILL NOT do anything that interferes with these rights.
More particularly:
WE WILL NOT try to stop you from forming, joining, or assist-
ing a union.
WE WILL NOT try to stop you from engaging in concerted ac-
tivities.
WE WILL NOT terminate or discipline you because you engage
in union and/or protected concerted activities.
WE WILL NOT threaten you with unspecified reprisals because
you engage in union and protected concerted activities.
WE WILL NOT tell you that you cannot speak about a union
while at work.
WE WILL NOT create the impression that we are watching your
union and concerted activities.
WE WILL NOT threaten to not re-hire you because you engage
in union and concerted activities.
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Page 31: Confidential Information
The protection of confidential information, trade secrets and
Wackenhut-specific operating procedures is vital to the inter-
ests and success of the G4S Secure Solutions (USA) Inc. Ad-
ditionally, in the line of duty you may come in contact with our
customer’s confidential information. Employees who improp-
erly use, copy or disclose or destroy 4S or client information
will be subject to disciplinary action, up to and including ter-
mination of employment.
They may also be subject to legal action, even if they do not
actually benefit form the disclosed information. Such infor-
mation includes any information considered proprietary by
G4S or the client organization.
Do not give interviews or make public statements about the ac-
tivities or policies of the company or our client without written
permission from the G4S Secure Solutions (USA) Inc.
WE WILL NOT threaten you with discipline and discharge for
speaking with your fellow employees or anyone else about
wages and salaries, work processes and systems, labor relations
strategies, and personal data on employees and others.
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Pages 26–27:
Professional Image
You must be neat and clean while on duty. You must wear only
the complete uniform as prescribed by your supervisor. Any
uniformed security personnel who become pregnant will be
provided with appropriate uniform clothing to maintain a pro-
fessional appearance. The area or branch office will be respon-
sible for acquiring maternity pants and larger shirts through the
Purchasing Department.
Due to the public nature of our business and the business ne-
cessity that uniformed personnel represent figures of authority,
we have established the following rules for personal appear-
ance.
No insignias, emblems, buttons, or items other than those is-
sued by the company may be worn on the uniform without ex-
pressed permission.
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Page 29: Security Personnel must:
Engage in no unnecessary conversations.
WE WILL NOT discriminatorily enforce this rule by telling you
that you cannot speak about a union while at work.
WE WILL NOT maintain in our G4S Wackenhut Social Net-
working Policy, or anywhere else, the following rule:
Do not comment on work-related legal matters without express
permission of the Legal Department.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL immediately rescind and give no effect to the rules
described above, and WE WILL furnish you and your fellow em-
ployees employed by us nationwide with inserts for the current
edition of the G4S security officer handbook that advise that
these unlawful rules have been rescinded, or provide the lan-
guage of lawful rules; or, alternately, publish and distribute to all
current employees employed by us nationwide a revised G4S se-
curity officer handbook that does not contain the unlawful rules,
or provides the language of lawful rules. WE WILL take the same
action with regard to the Social Networking Policy.
G4S SECURE SOLUTIONS (USA) INC. 45
WE WILL make whole Donald Wickham for the losses he suf-
fered as a result of our unlawful suspension and discharge of
him; WE WILL, reinstate Donald Wickham to the position of em-
ployment he held on February 10, 2011, or, if such a position no
longer exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges that he en-
joyed as of February 10, 2011.
WE WILL expunge from our files any reference to Donald
Wickham’s discharge, and WE WILL notify him in writing that
this has been done and that the removed material will not be used
against him in any way.
WE WILL expunge from our files any reference to Debra Ster-
ling’s discipline, and WE WILL notify her in writing that this has
been done and that the removed material will not be used against
her in any way.
G4S SECURE SOLUTIONS (USA) INC.
APPENDIX B
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything that interferes with these rights.
More particularly:
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Page 31: Confidential Information
The protection of confidential information, trade secrets and
Wackenhut-specific operating procedures is vital to the inter-
ests and success of the G4S Secure Solutions (USA) Inc. Ad-
ditionally, in the line of duty you may come in contact with our
customer’s confidential information.
Employees who improperly use, copy or disclose or destroy
G4S or client information will be subject to disciplinary action,
up to and including termination of employment. They may also
be subject to legal action, even if they do not actually benefit
form the disclosed information. Such information includes any
information considered proprietary by G4S or the client organ-
ization.
Do not give interviews or make public statements about the ac-
tivities or policies of the company or our client without written
permission from the G4S Secure Solutions (USA) Inc.
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Pages 26–27:
Professional Image
You must be neat and clean while on duty. You must wear only
the complete uniform as prescribed by your supervisor. Any
uniformed security personnel who become pregnant will be
provided with appropriate uniform clothing to maintain a pro-
fessional appearance. The area or branch office will be respon-
sible for acquiring maternity pants and larger shirts through the
Purchasing Department.
Due to the public nature of our business and the business ne-
cessity that uniformed personnel represent figures of authority,
we have established the following rules for personal appear-
ance.
No insignias, emblems, buttons, or items other than those is-
sued by the company may be worn on the uniform without ex-
pressed permission.
WE WILL NOT maintain in our G4S security officer handbook,
or anywhere else, the following rule:
Page 29: Security Personnel must:
Engage in no unnecessary conversations.
WE WILL NOT maintain in our G4S Wackenhut Social Net-
working Policy, or anywhere else, the following rule:
Do not comment on work-related legal matters without express
permission of the Legal Department.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL immediately rescind and give no effect to the rules
described above, and WE WILL furnish you and your fellow em-
ployees employed by us nationwide with inserts for the current
edition of the G4S security officer handbook that advise that
these unlawful rules have been rescinded, or provide the lan-
guage of lawful rules; or, alternately, publish and distribute to all
current employees employed by us nationwide a revised G4S se-
curity officer handbook that does not contain the unlawful rules,
or provides the language of lawful rules. We will take the same
action with regard to the Social Networking Policy.
G4S SECURE SOLUTIONS (USA) INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-023380 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.