Interstate Security Services, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 6 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Interstate Security Services, Inc. and Mary E. Mc-
Donald and Raymond A. Way. Cases 39-CA-
96 and 39-CA-206
July 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 26, 1981, Administrative Law
Judge Benjamin Schlesinger issued the attached
Decision in this proceeding. Thereafter, Respond-
ent and counsel for the General Counsel filed ex-
ceptions and supporting briefs, and Respondent
filed a brief in reply to the General Counsel's ex-
ceptions. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order,3 as
modified herein.
The Administrative Law Judge found, inter alia,
that Respondent's discharge of Raymond A. Way
violated Section 8(a)(1) of the Act. In so finding,
he first determined that the November 6, 1979,
meeting which Way was directed to attend was a
meeting which Way reasonably believed might
result in his discipline and that Weingarten protec-
tions4 apply at a nonunion facility. He further
found that Respondent denied Way's request that
he be accompanied by a representative at the meet-
ing and, as a result of Respondent's refusal, Way
declined to participate in the interview. The Ad-
ministrative Law Judge then found that Respond-
ent, following Way's refusal to attend the meeting,
decided to terminate Way and stated as one of its
reasons for so doing Way's refusal to attend the
November 6, 1979, meeting. The Administrative
I We hereby grant counsel for the General Counsel's "Motion To Cor-
rect Order" and shall modify the Administrative Law Judge's recom-
mended Order and notice by substituting "Officer-in-Charge for Subre-
gion 39" for "Regional Director for Region I" and by providing the
proper address for the Subregional Office on the notice.
' Respondent and counsel for the General Counsel have excepted to
certain credibility findings made by the Administrative Law Judge. It is
the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing his findings.
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
N.LR.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975).
263 NLRB No. 2
Law Judge then decided that Way's refusal to
attend the meeting constituted protected concerted
activity and that the termination violated Section
8(a)(1) of the Act. International Ladies' Garment
Workers' Union, Upper South Department, AFL-
CIO v. Quality Manufacturing Co., et al., 420 U.S.
276 (1975).
The Administrative Law Judge also found that
Way was engaged in protected concerted activity
when he and several fellow employees generated a
newspaper story protesting disciplinary action
taken against Way, even though the story con-
tained certain information about Respondent's secu-
rity measures. Here again, part of the stated
grounds for Way's discharge involved his protect-
ed concerted activity in generating the newspaper
article and, consequently, the Administrative Law
Judge found the discharge violative of Section
8(a)(1).
In its exceptions, Respondent initially challenges
the Administrative Law Judge's findings regarding
the November 6 interview. It argues that Weingar-
ten rights do not apply at a nonunion facility and
that Way had no right to representation because
the interview was for the purpose of imposing dis-
cipline. Next, Respondent argues that it had the
right to discharge Way without an interview, and
that, in any event, Way failed to invoke his Wein-
garten rights properly. Finally, Respondent asserts
that Way's actions in generating the newspaper
story were not protected by the Act because his
actions constituted disloyalty and a breach of confi-
dentiality. We find no merit in Respondent's excep-
tions.
With respect to the November 6 interview, we
have recently held that Weingarten rights do apply
at a nonunion facility.5 Also, for the reasons stated
by the Administrative Law Judge, we agree that
the interview was an investigatory interview within
the meaning of Weingarten6 and that Way properly
invoked his right to representation.
As for Respondent's assertion that it could law-
fully terminate Way without conducting the sched-
uled November 6 interview, we note that, in and of
itself, this is a proper statement of the law. At the
time Way declined to attend the interview without
a representative Respondent was privileged to con-
tinue its investigation and render appropriate disci-
pline. The simple fact is, however, that Respondent
did more than what it was lawfully entitled to do;
namely, in imposing discipline, Respondent relied
I Materials Research Corporation, 262 NLRB 1010 (1982).
s See Baton Rouge Water Works Company, 246 NLRB 995 (1979).
Member Fanning, who dissented in Baton Rouge, would find that the No-
vember 6 interview was one to which Weingarten protections attached
for the reasons stated in his dissent in Baton Rouge.
6
INTERSTATE SECURITY SERVICES, INC.
on Way's refusal to attend the interview as a basis
for his termination. Thus, while Respondent was
legally entitled to forgo the interview if Way insist-
ed on representation, Way was equally protected
under the Act in refusing to attend the interview.
Weingarten, 420 U.S. at 258-259. And, as the Su-
preme Court held in International Ladies' Garment
Workers' Union v. Quality Manufacturing Co., 420
U.S. 276, a companion case to Weingarten, an em-
ployer violates Section 8(aX)(1) when it discharges,
or otherwise disciplines, an employee for insisting
upon his or her Weingarten rights.
With respect to the newspaper article, Respond-
ent's assertion that Way was not protected when
he and several fellow employees generated the
story is also without merit. We have held in several
cases that employees are protected in expressing
their views on pending labor disputes to the public
so long as such expressions do not constitute dis-
loyalty or disparagement of Respondent's product
or reputation. 7 In addition, "absent a malicious
motive, [an employee's] right to appeal to the
public is not dependent on the sensitivity of Re-
spondent to his choice of forum." Thus, even
where employees, in expressing their position on a
labor dispute, coincidently reveal information that
the respondent "would understandably prefer to
keep out of the public eye," s the employees are
protected by the Act.
In the instant case, the newspaper article plainly
constituted an expression of the employees' views,
and Way's in particular, concerning a labor dispute
with Respondent. As found by the Administrative
Law Judge, the employees violated no reasonable
existing rule in prompting the story and made no
false statements except for the surmise that Way
was being "picked on" because of union activities.
Also, our reading of the record reveals nothing in
the article which can reasonably be termed mali-
cious, disloyal, or a disparagement of Respondents
Thus, to the extent Respondent relied upon the
newspaper article incident as a basis for Way's dis-
charge, 0° it violated Section 8(a(l).
Having found that Respondent relied upon two
incidents of protected concerted activity as bases
for Way's discharge, the only remaining issue is
whether Respondent demonstrated that it would
have discharged Way in the absence of his protect-
' Allied Aviation Service Company of New Jersey, Inc, 248 NLRB 229
(1980), enfd. 636 F.2d 1210 (3d Cir. 1980) (letters to customers of the re-
spondent alleging the respondent's operations to be unsafe found protect-
ed); Richboro Community Mental Health Council Inc., 242 NLRB 1267
(1979); Community Hospital of Roanoke Valley, Inc., 220 NLRB 217
(1975), enfd. 538 F.2d 607 (4th Cir. 1976).
a Allied Aviation, supra at 231.
· Compare American Arbitration Association, Inc., 233 NLRB 71 (1977).
'O In the termination letter provided Way, two of the six reasons stated
for termination involved the newspaper article incident.
ed conduct. The Administrative Law Judge found
that no such showing was made. We agree.
As noted above, Respondent presented six rea-
sons for the termination of Way. Three of the six
involved the activities discussed above which we
have found to be protected by the Act. The three
other reasons cited were frequent absenteeism
when scheduled to work weekends, refusing
instructions to get a haircut, and "overall, a poor
attitude." In its exceptions, Respondent does not
argue specifically that the latter three reasons es-
tablished a sufficient basis for discharge but instead
seems to assert that the newspaper article incident
served as the reason for Way's termination.1 1 In
any event, we find that Way would not have been
terminated absent his protected activity.
In support of our conclusion we note that well
prior to his discharge Way had received warnings
regarding the length of his hair and the frequency
of his weekend absences. At no point was there
any indication whatsoever that any of these actions
would lead to termination. As for Way's attitude, a
vague catchall concept, there is no record of any
action being taken against Way on such grounds.
In contrast, the publication of the newspaper ar-
ticle prompted Respondent to immediately suspend
Way. This incident also precipitated the November
6 meeting. Thus, prior to the newspaper article, no
termination-related actions were taken by Respond-
ent and it was only after the article appeared and
after Way refused to attend the meeting that Re-
spondent decided to terminate Way. Accordingly,
we conclude that Respondent would not have ter-
minated Way in the absence of his engaging in pro-
tected concerted activity and, therefore, that Way's
discharge violated Section 8(a)(1). 1 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Interstate Security Services, Inc., Haddam, Con-
necticut, its officers, agents, successors, and assigns,
I I Of course, if that incident was the sole reason for Way's discharge,
Respondent clearly violated Sec. 8(aXI) inasmuch as we have found
Way's actions in that regard to be protected under the Act.
" Respondent challenges the Administrative Law Judge's finding that
it did not decide to terminate Way until after the November 6 meeting.
For the reasons fully set forth by the Administrative Law Judge, we
agree with his finding. Assuming arguendo, however, that the decision
was made prior to the abortive November 6 interview, it is clear on the
record that the earliest possible time the decision could have been made
was following publication of the newspaper article. If that were the case,
which we find it is not, Way's discharge would still be unlawful inas
much as it would still have been prompted by a protected concerted
action by Way.
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall take the action set forth in the said recom-
mended Order, as so modified:
1. In paragraph 2(d) substitute "by the Officer-in-
Charge for Subregion 39" for "by the Regional Di-
rector for Region 1."
2. In paragraph 2(e) substitute "Notify the Offi-
cer-in-Charge for Subregion 39" for "Notify the
Regional Director for Region 1."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discipline you for requesting
to be represented by a fellow employee at any
interview or meeting held with you where you
have reasonable grounds to believe that the
matters to be discussed may result in your
being the subject of disciplinary action.
WE WILL NOT require you to take part in an
interview or meeting where you have reason-
able grounds to believe that the matters to be
discussed may result in your being the subject
of disciplinary action and where we have re-
fused your request to be represented at such
meeting by a fellow employee.
WE WILL NOT interfere with, restrain, or
coerce you by suspending or discharging you
for engaging in protected concerted activities.
WE WILL NOT promulgate any rule prohibit-
ing you from engaging in any union activities
during working hours, so long as your activi-
ties do not interfere with your work.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your right to engage in self-organi-
zation, to join or assist The Federation of Spe-
cial Police and Law Enforcement Officers,
and to engage in other concerted activities for
the purposes of collective bargaining or other
mutual aid or protection, or to refrain from
any or all such activities, except to the extent
permitted by Section 8(a)(3) of the National
Labor Relations Act, as amended.
WE WILL offer Raymond A. Way immediate
and full reinstatement to his former position
or, if such position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole
for any loss of pay he may have suffered by
reason of our discharge of him, with interest.
WE WILL revoke our rule, promulgated on
March 3, 1980, prohibiting you from engaging
in union activities during working hours.
INTERSTATE SECURITY SERVICES,
INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This proceeding was heard before me in Hartford, Con-
necticut, on August 27 and 28, 1980. It involves two dis-
charges and one rule barring certain union activities, all
alleged to be in violation of Section 8(aX3) and (1) of the
Act.' Respondent denied that it violated the Act in any
way.
Upon consideration of the entire record in this pro-
ceeding, including the demeanor of the witnesses, and
upon review of the briefs and supplemental briefs submit-
ted by both the General Counsel and Respondent, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Interstate Security Services, Inc., a Connecticut corpo-
ration with an office and place of business in East Lyme,
Connecticut, has been engaged in the operation of a se-
curity guard business providing security guard services,
inter alia, for Northeast Utilities Services Company
(Northeast) at the Connecticut Yankee Nuclear Power
Plant (Power Plant) in Haddam, Connecticut. During the
calendar year ending December 31, 1979, Respondent, in
the course and conduct of those operations, provided
services valued in excess of $50,000 for other enterprises
within the State of Connecticut, including Northeast,
which are directly engaged in interstate commerce.
Further, Northeast has maintained an office and place
of business at Power Plant in Haddam, Connecticut,
where it has been engaged as a public utility in the gen-
eration, transmission, distribution, and sale of electricity
and related products. During the calendar year ending
December 31, 1979, Northeast provided electricity
valued in excess of $50,000 from its Power Plant directly
to points located outside the State of Connecticut. As a
consequence, I find and conclude, as Respondent admits,
that it is now and has been at all times material herein an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
I further find and conclude that Local Union No. 611,
Laborers International Union of North America, AFL-
CIO (Laborers Union) and The Federation of Special
Police and Law Enforcement Officers (Federation) are
now and have been at all times material herein labor or-
' The relevant docket entries are as follows: The charge in Case 39-
CA-96 was filed by Mary E. McDonald on January 21, 1980, and a c.om-
plaint issued thereon on March 31, 1980. The charge in Case 39-CA-206
was filed by Raymond A. Way on April 14. 1980. and an order consoli-
dating caues and a conolidated complaint issued on August 6, 1980.
8
INTERSTATE SECURITY SERVICES. INC.
ganizations within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. The Discharge of Raymond A. Way
I. The facts
On October 16, 1979, Way, a guard at the front en-
trance to the Power Plant, failed to detect a weapon
being carried by another security officer passing through
a metal detection device. Respondent's witnesses said
that a light went on and that Way was negligent in his
duties. Way, on the other hand,_ said that his equipment
was defective.
Because of the incident, Way and two other guards
were required to go through retraining on the metal de-
tector. Way became incensed at the suggestion and re-
fused to attend his retraining session scheduled for Octo-
ber 22, 1979, as a result of which he was suspended. Fi-
nally, on October 29, he agreed to be retrained and went
to a session on October 31, after which he was reinstated
to employment. However, feeling that he was being ha-
rassed, Way, accompanied by some other employees, de-
cided to take his case to a newspaper. An article was
published on or about November 1, revealing informa-
tion which Respondent contends it did not desire to have
published, and containing Way's complaint that he was
being picked on because of his union activities. Way was
again suspended, this time for giving out false informa-
tion and privileged security information, pending a meet-
ing with management, scheduled for November 6, 1979.
Upon Way's request to bring a "witness," he was told by
Ronald Guerette, Respondent's security supervisor, that
he did not know, but saw no reason why he could not.
Way arrived with six persons (including other guards
employed by Respondent). However, he was told by
John Devine, Respondent's assistant to the regional man-
ager, that Respondent would see each person, one at a
time, starting with Way. Way refused to meet with man-
agement alone, stating that he would not be interviewed
alone because he was worried that something might
happen to him. Way was then told that he remained
under suspension. Shortly thereafter, Respondent pre-
pared a letter of discharge, dated November 6, 1979,
which read, in part, as follows:
As a result of your refusal to meet with ISS Re-
gional Management this morning, you have made it
necessary for us to terminate you in writing rather
than in person. You were instructed to come to the
Flanders office for a meeting at 9:00 a.m. You ar-
rived with a number of friends and refused to meet
with us without these friends present. We felt that
the matter under discussion did not merit group at-
tendance and as indicated to you by John Devine, it
was our intention to meet with you and then each
of your friends individually. You refused.
As a result of previous actions, listed below, your
employment is severed. An unemployment notice is
attached, indicating you were discharged for willful
misconduct. The actions are as follows:
1. Making false statements.
2. Divulging privileged Site Security related in-
formation.
3. Frequent absenteeism when scheduled to work
weekends.
4. Refusing legitimate instructions from a supervi-
sor to get a haircut.
5. Refusal to meet with ISS Regional Manage-
ment as directed.
6. Overall, a poor attitude.
2. Discussion
The above letter makes it clear that at least one reason
for Way's discharge was his refusal to meet alone with
Respondent's management and his insistence upon a
'"witness" being present. The Supreme Court has held
that an employee has a right to the presence of his col-
lective-bargaining representative at an employer-conduct-
ed investigatory interview where the employee has a rea-
sonable fear that he will be disciplined. N.LR.B. v. J.
Weingarten, Inc., 420 U.S. 251 (1975). Respondent does
not question, and I conclude, that Way had a reasonable
belief that the interview might result in discipline being
meted out against him. Respondent claims, however, that
Weingarten rights do not apply to an unorganized facili-
ty. The Board has not yet directly answered this ques-
tion, but as I pointed out in E. 1. Dupont de Nemours,
JD-503-80 (1980), there is sufficiently strong dicta in de-
cisions by the Board and by one United States Court of
Appeals to sustain the principle that Weingarten applies,
whether an employer is organized or not.
In Glomac Plastics, Inc., 234 NLRB 1309, 1311 (1978),
enfd. in relevant part 592 F.2d 94 (2d Cir. 1979), the
Board stated:
We conclude that Section 7 rights are enjoyed by
all employees and are in no wise dependent on
union representation for their implementation.
Further, the Board's own reading of Weingarten and In-
ternational Ladies' Garment Workers' Union v. Quality
Manufacturing Co., 420 U.S. 276 (1975), persuaded it:
that the Court's primary concern was with the right
of employees to have some measure of protection
against unjust employer practices, particularly those
that threaten job security. These employee concerns
obtain whether or not the employees are represent-
ed by a union. Ibid.
In Anchortank. Inc., 239 NLRB 430 (1978), employees
asked for union representation after the union had been
elected but before it had been certified. The Board, find-
ing that the employer unlawfully denied the employees'
request, stated that the emphasis of Weingarten was the
"employee's right to act concertedly for protection in
the face of a threat to job security, and not upon the
right to be represented by a duly designated collective-
bargaining representative," and that the employee's con-
cern for protection "remains whether or not the employ-
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees are represented by a union." Thus, because the re-
quest was an exercise of Section 7 rights, it mattered not
whether it was a request for an uncertified union repre-
sentative or a fellow employee.
The Fifth Circuit Court of Appeals partially enforced
the Anchortank decision at 618 F.2d 1153 (1980). Al-
though the court had many problems, referring, at 1155,
to the case as a whole as "an issue of subtle complexity
[which] apparent simplicity quickly disintegrates to
reveal an amalgam composed of a considerable number
of sub-issues," it had little difficulty in concluding that
there are Weingarten rights in a nonunion plant and that
an employee engages in concerted activities when he re-
quests the presence of a fellow employee at an investiga-
tory interview, providing that the employee is in the
same appropriate unit as the employee who is being in-
vestigated. (618 F.2d at 1157). The court specifically did
not decide whether the right attaches to a request for an
employee not within the unit. (Id. at 1158, fn. 5).
The weight of the foregoing authorities, albeit much
dicta, is compelling. There are Weingarten rights in Re-
spondent's nonunion facility; but that does not end the
inquiry. Although Administrative Law Judge Winkler
held to the same effect in Tokheim Corporation, JD-573-
79,2 he nonetheless dismissed the complaint because the
employee asked not for a "representative" but for a "wit-
ness" to be present solely in an observational role.
Noting that the difference may be "an overly nice exer-
cise in semantics," he found that it was significant in
light of Weingarten's emphasis on the "important function
of a union representative at an 'investigatory interview."'
However, as noted by the Board in Anchortank: "the
union representative's role is limited to assisting the em-
ployee and possibly attempting to clarify the facts or
suggest other employees who may have knowledge of
them. Thus, the union representative is not permitted to
use the powers conferred upon the union by its designa-
tion as collective-bargaining agent, and, in essence, may
do no more during the course of the interview than
could a fellow employee." 239 NLRB at 430-431. In
Mobil Oil Corporation, 196 NLRB 1052 (1972), and Qual-
ity Manufacturing Company, 195 NLRB 197 (1972), the
Board held that an employer has no duty to bargain with
the union representative at an investigatory interview.
But in Southwestern Bell Telephone Company, 251 NLRB
612, 613 (1980), the Board held that the Supreme Court
in Weingarten "intended to strike a careful balance be-
tween the right of an employer to investigate the con-
duct of its employees at a personal interview, and the
role to be played by a statutory representative who is
present at such an interview" and that "an employer's
right to regulate the role of the statutory representative
at an investigatory interview is limited to a reasonable
prevention of . . . a collective-bargaining or adversary
confrontation with the statutory representative." There,
the employer insisted that the union representative
remain silent, thus stifling any participation by him in
violation of the Act.
2 Tokheim, Dupont, and Materials Research Corporation, JD-(NY)-I0-
80, in which Administrative Law Judge Morton held that Weingarten
rights do not apply to nonunion settings, and are all before the Board on
exceptions.
Even with the limitation of Southwestern Bell, it is ob-
vious that the role of the representative is a passive one,
rather than a full-blown advocate. The question which
remains is whether, in the circumstances, Way's request
was for this kind of representative, in light of Way's re-
quest to have not a "representative," but a "witness"
present at his interview. Of course, that may depend on
whether the "witness" Way desired was one who had
seen the particular event for which Way thought he was
going to be disciplined or whether Way desired someone
to sit in on the interview and help him protect his rights.
In the former instance, the Board has ruled that Weingar-
ten does not "encompass any right an employee may
have to produce witnesses on his or her behalf." Coyne
Cylinder Company, 251 NLRB 1503, 1504, fn. 6 (1980).
Here, Way's request was twofold. He testified that he
told Devine that "we wanted to have it straightened out
now, that we thought that we could have a hearing and
have it done with, because the people who were in-
volved were there." But he also stated "that they had
changed their stories before when I had meetings with
them, and that's why I wanted a witness." Lee Smith,
one of the six employees with Way and another guard
who "was a witness to the incident" of October 16, 1979,
testified only to Way's statement that "he was worried
about something that might happen from [sic] him."
If, as the Board has held, the rationale of Weingarten is
grounded on an employee's right to engage in concerted
activities, then surely Way was seeking to take advan-
tage of that right, if only for moral support to ensure
that Respondent would not change its position about the
contents of the interview. There is no assurance that the
"witness," if privy to the events or even if familiar with
Respondent's operation, would not have aided Way in
stating his story. The "witness" in the sense used in
Coyne may not have been a "representative" within the
literal meaning of Weingarten; but in Coyne, the employer
also refused to permit the employee to have his union
representative at the interview, for which the Board
found a violation. Thus, the employee in Coyne was af-
forded some measure of protection. Here, however, there
is no union representative; and it ought not be held that
the presentation of Way's case should not be aided by his
fellow employee (even a witness), with the latter
counseling Way in defense of charges which may result
in disciplinary action.
Weingarten makes clear that there may be concerted
activities "even though the employee alone may have an
immediate stake in the outcome; he seeks 'aid or protec-
tion' against a perceived threat to his employment secu-
rity." 420 U.S. at 260. The person giving aid or protec-
tion, to paraphrase and quote from N.L.R.B. v. Peter
Cailler Kohler Swiss Chocolates Company, Inc., 130 F.2d
503, 505-506 (2d Cir. 1942),3 knows that by his action he
assures himself, in case his turn ever comes, of the sup-
port of the one whom he is then helping; "and the soli-
darity so established is 'mutual aid' in the most literal
sense, as nobody doubts." Further, the Court stated in
Weingarten at 262:
3 Cited with approval in Houston Contractors Assn. v. N.L.R.B., 386
U.S. 664, 668-669 (1967); Weingarten, 420 U.S. at 261.
10
INTERSTATE SECURITY SERVICES, INC.
. . .Requiring a lone employee to attend an investi-
gatory interview which he reasonably believes may
result in the imposition of discipline perpetuates the
inequality the Act was designed to eliminate, and
bars recourse to the safeguards the Act provided
"to redress the perceived imbalance of economic
power between labor and management." American
Ship Building Co. v. I:L.R.B., 380 U.S. 300, 316
(1965).
The Act protects not only freedom of "self-organiza-
tion" but also freedom of "association." "Association"
may be between two employees as well as all employees,
and "association" is protected in nonunion facilities as
well as union facilities. N.L.R.B. v. Washington Alumi-
num Co., 370 U.S. 9 (1962); N.L.R.B. v. Columbia Uni-
versity, 541 F.2d 922, 931, fn. 5 (2d Cir. 1976). Respond-
ent's discharge of Way denied him the right to freedom
of association with his fellow employees. Way was will-
ing to be interviewed if he had a "witness" present.
Way's refusal to meet with management was one of the
reasons for his discharge. Since Way's insistence on a
witness was protected, his discharge violates the terms of
Section 8(a)(l) of the Act. International Ladies' Garment
Workers' Union v. Quality Manufacturing Co., 420 U.S.
276 (1975).
However, Respondent claims that the foregoing reason
was only one of many reasons for Way's discharge. In
such a case, the Board's recent decision in Wright Line, a
Division of Wright Line, Inc., 251 NLRB 1083 (1980), is
instructive. The General Counsel is required to show
that the protected activity was a motivating factor in the
discharge. This the General Counsel has clearly shown.
At such point the burden shifts to Respondent to demon-
strate that the same action, to wit, the discharge, would
have taken place even in the absence of the protected
conduct. Although Respondent's oral testimony was to
the contrary, particularly the attempt of Walter Thoma,
Respondent's assistant regional manager, to show that
the decision to terminate Way had been made before the
scheduled meeting of November 6, 1979, his testimony is
contradicted by his own memo to Respondent's presi-
dent, a memo which I credit in full, thus discrediting the
remainder of his testimony. That memo of the scheduled
meeting of November 6, 1979, reads, in part, as follows:
R. Way arrived at Flanders with seven friends. Re-
fused to meet with ISS Regional Management. ISS
stated they would meet with each individually. This
was not good enough. G. McDonald called D.
Hicks to brief him on the situation and put together
a termination notice. G. McDonald notified N.
Tasker, T. Weekly and J. Mayoros on the situation
and read the termination notice on R. Way.
This exact sequence of events was reiterated by
Thoma as accurate. Indeed, when Way refused to meet,
Devine told him that he was still under suspension. It is
thus clear that the decision to terminate Way was made
only after Way refused to meet with Respondent's man-
agement. Accordingly, there is no credible evidence to
show that the same action would have taken place if
Way had not refused to meet, as Thoma insisted. Way's
discharge thus violated Section 8(a)(1) of the Act.
In addition, the General Counsel contends that Re-
spondent's discharge of Way also violated Section 8(a)3)
of the Act. While concerted protected activities and
union activities are by no means mutually exclusive the-
ories for finding certain discharges to be in violation of
the Act, the 8(a)(3) violation does not mesh with the
facts of and leading up to the November 6 interview. I
have found that Respondent did not make a decision to
terminate Way until he refused to submit himself alone
to what he perceived to be an investigatory interview.
Although it is clear that by time that Respondent
knew of Way's union activities-because Way so ad-
mitted in the newspaper article-the record is barren of
proof that it had any prior knowledge, despite the fact
that I credit Way's assertions that he was instrumental in
early organizing attempts for the Laborers Union, which
finally failed because that union could not represent
guards. Thus, the earlier discipline of him (including a
warning for his long hair) cannot be attributed to illegal
motivation. The incident involving a breach of the
Power Plant's security could have prompted Respondent
to discharge him immediately, if union animus was at the
core of its thinking. Instead, Respondent required that
Way be retrained, along with two other guards (one, a
supporter of the Laborers Union; the other, not a sup-
porter), a not unreasonable preventative measure in the
circumstances; and even when Way balked at being re-
trained, Respondent gave him yet another opportunity to
improve his security techniques.
The General Counsel contends that Respondent seized
upon the newspaper article as a means of ridding itself of
a union troublemaker, claiming that no rule published to
employees had been violated and that the article was not
false. The General Counsel understates the case. Al-
though there was no specific rule at that time,4 Respond-
ent could well have been incensed that Way would
reveal certain of its security techniques to the public and
would jeopardize Respondent's contract with Northeast,
upon which Respondent depended for its business. I do
not find, therefore, that the article was a pretext to cover
up Respondent's true motive of Way's union activities.
The General Counsel suggests, however, and without ex-
plication, that Way's activities protesting Respondent's
treatment of him could have been protected. Although
this was not the theory of the complaint, the matter has
been fully litigated and is ripe for disposition.5 Here,
Way and a number of fellow employees took Way's case
to a newspaper. They violated no reasonable rule in
doing so, and I find nothing false in the report, other
than Way's surmise that he was being discriminated
against because of his union activities.
4 A rule was promulgated 4-1/2 months later. However, in one of Re-
spondent's documents-it is unclear from the record whether it had been
distributed to employees-there appears the following: "Never discuss
your job with anyone while you are off duty." Although not at issue, this
rule could easily violate the Act. Texas Instruments Incorporated, 236
NLRB 68, 72 (1978), enfd. in pertinent part 599 F 2d 1067 (Ist Cir 1979).
s C & E Stores. Inc.. C & E Supervalue Division, 221 NLRB 1321. fn. 3
(1976).
II
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Surely, if Way and the employees ceased work concer-
tedly, that would be protected. And, if they distributed
leaflets, that would be protected. I see no reason why
wider distribution through a newspaper should have any
less protection. Finally, although I have not found an
8(a)(3) violation herein, Way's publicity does not lose its
protection merely because I have found him to be incor-
rect. If this were the law, every time employees strike in
protest of alleged unfair labor practices, and so state, the
employees would lose all protection under Section 7 if
no violations were found. This is simply not the law. As
a result, I find that Way's activity was protected and
concerted; and I conclude that Respondent additionally
violated Section 8(a)(1) of the Act by discharging him
for engaging in that activity.
B. The Discharge of Mary E. McDonald
Mary E. McDonald was not exactly a model employ-
ee. Prior to the final events which resulted in her dis-
charge, she was given a warning for leaving a vital area
door open and unattended (July 20, 1979); a written
warning for disobeying a direct order from a shift super-
visor (July 23, 1979); and a 1-day suspension for stating
to her supervisor, "Fuck you" (October 6, 1979). Only a
week before her termination, she was absent from her as-
signed post; and the matter was still pending review, be-
cause of the hospitalization of John C. Mayoros, Re-
spondent's chief of security, when the final incident took
place.
There is no question that when two inspectors from
the Nuclear Regulatory Commission appeared without
notice on January 8, 1980, shortly after 5:30 p.m., Mc-
Donald was not performing her assigned functions as
zone one guard and apparently did not for another 15
minutes or so. And there is no question that the Power
Plant was cited by the Commission for this infraction,
among others. The principal issue was whether Mc-
Donald was permitted to be away from her normal area
or whether Respondent seized upon her absence as an
excuse to terminate her because of her union activities, as
the General Counsel argues, or whether, as contended
by Respondent, her termination was the necessary result
of her actions, without any consideration of her union
activities.
McDonald was active in support of the Federation, to
whom the employees turned after the Laborers Union in-
dicated that it could not represent guards. She expressed
her support to two of Respondent's supervisors-one,
Sergeant Joyce Farquharson, a principal player in the
final act of McDonald's employment, who never relayed
McDonald's union adherence to any higher authority;
the other, Sergeant John Birdsey, who never testified on
behalf of Respondent. Because sergeants are supervisors,
and Birdsey indicated that he would have to relate to
management the names of those employees who favored
the Federation, I am constrained to assume that Re-
spondent knew of McDonald's involvement in the Feder-
ation, despite the denials of Respondent's witnesses.
The issue then boils down to one which is familiar in
these discharge cases-what was Respondent's motiva-
tion? If it was McDonald's union activities, there has
been a violation of Section 8(a)(3) of the Act. If Re-
spondent was not so motivated, then Respondent may
properly have discharged her for good reason, for bad
reason, or for no reason at all, as long as the reason was
not a pretext for her union activities. This portion of this
proceeding is noteworthy solely because the testimony of
the various witnesses is so wholly divergent that I sus-
pect the whole truth has yet to be told.
The General Counsel makes a somewhat appealing
case that McDonald's absence from her post was merely
a pretext for her discharge. He points to Respondent's
expansion of the time McDonald was away from her
post-originally, from 5:30 to 5:50 p.m., but it was
shown at the hearing that McDonald responded to a
zone check at 5:35 or 5:37 p.m. and responded to an
alarm and was at the fence at 5:52 p.m. Accordingly, the
most McDonald could have been away was 17 minutes,
although McDonald testified that she was absent only 5
or 10 minutes. I find it more probable that McDonald's
recollection was faulty and self-serving.
The General Counsel also points to Thoma's statement
that McDonald was discharged for leaving her post va-
cated, but McDonald testified without contradiction that
zone one was frequently vacated and covered by another
guard. Finally, Mayoros testified that McDonald left her
post without permission, but this was contradicted by
Lieutenant William J. Laurinaitis, who admitted that
Farquharson told him and Mayoros that McDonald had
permission to go to the restroom; and Farquharson cor-
roborated this at the hearing. When confronted with this
testimony, Mayoros testified that McDonald's problem
was that she left her position without permission to get
permission to leave her post, which was corroborated by
Thoma.
On the other hand, McDonald's testimony was not
wholly consistent with the General Counsel's theory that
she had permission. Indeed, when Laurinaitis questioned
her on January 9, 1980, about the events, she told him
first that she did not know whether she had permission
to leave and, later, that she did not have permission. It
was only after that conversation, when she met Farqu-
harson, that she was reminded that Farquharson had
given her permission. The upshot is that there is a ques-
tion whether she had permission to begin with, in light
of her admission to Laurinaitis; and I might be more un-
derstanding of her testimony if it was corroborated by
Farquharson, whose recollection of the events was far
different. Whereas McDonald recalled at the hearing that
she asked Farquharson whether she could leave for
lunch, Farquharson recalled that McDonald either told
her that she was leaving or asked her whether she could
leave to go to the bathroom. She was certain that Mc-
Donald said nothing about lunch.
It appears that McDonald's admission to Laurinaitis
shortly after the event in question should be credited,
rather than her present testimony, at least to the extent
that she never had permission to go to lunch, which Mc-
Donald in fact did. Indeed, I find that she never had per-
mission from Farquharson, who, I find, was biased
against Respondent because she was terminated from em-
ployment and because she favored organization of at
12
INTERSTATE SECURITY SERVICES, INC.
least sergeants. 6 McDonald's leaving her post without
permission constituted a violation of Respondent's rules,
and subjected McDonald, in light of her prior work his-
tory, to discharge. I find no pretext, especially in light of
McDonald's past employment history, including a similar
violation only a short time before her termination, for
which McDonald had no explanation. Further, Mc-
Donald conceded that, after inspections of the Nuclear
Regulatory Commission, there were always repercus-
sions; and I find that McDonald's termination was likely
the result of the inspection. Finally, it is clear that Re-
spondent took seriously the activities of January 8, 1980,
as demonstrated by its immediate demotion of Farquhar-
son.
I conclude, therefore, that Respondent did not violate
Section 8(a)(3) and (1) by terminating McDonald.
C. Respondent's Rule Prohibiting Union Activities
On March 3, 1980, Respondent posted the following
notice:
It has been brought to my attention that union mat-
ters and actions are being conducted on-site by
members of the Security Force while they are on
duty. These activities are interferring [sic] with the
normal work duties and supervision plus affecting
the over-all effectiveness of the Security operation
on-site.
These activities must be discontinued at once and
must be conducted off duty.
Any future activities of this nature by on-duty offi-
cers will result in disciplinary action.
Respondent's employees are on duty from the time
they clock in until the time they clock out. There are no
rest or break periods. Employees eat their lunch when-
ever they are free to do so, but are still "on duty." Re-
spondent's rule, therefore, bars the conduct of union mat-
ters, actions, and activities throughout the work day. De-
spite Respondent's contention that the promulgation of
the rule was prompted by employees' neglecting their
duties and writing out contract proposals while at their
work stations, the rule is not so limited. Rather, it effec-
tively bars any union activities throughout the workday,
despite Respondent's concession at the hearing that em-
ployees were permitted to talk about baseball and the
weather, as long as such conversations did not affect
their work, and in its brief that: "Certainly, an employee
could engage in conversation without neglecting his
duties."
As a result, Respondent's rule, although perhaps well-
intentioned, was overbroad in its prohibition of any
union activities, whereas other nonbusiness related activi-
ties could be engaged in. I conclude that Respondent's
I The credibility of both McDonald and Farquharson is also subject to
question because of the inconsistencies relating to whether another guard
was to cover for McDonald in her absence and who told that guard. Mc-
Donald also testified that she met Farquharson in the bathroom, testimo-
ny not corroborated by Farquharson and which I find unlikely.
promulgation of this rule violated Section 8(a)(1) of the
Act. 7
Ill. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent, described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. In particular,
I shall recommend that Raymond A. Way be reinstated
to his former position or, if that position no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges previously
enjoyed, and that he be made whole for any loss of pay
suffered by him since November 2, 1979, as a result of
the discrimination practiced against him, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon to be computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (197 7).
8 I
shall also order that the illegal rule prohibiting union ac-
tivities be revoked.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 9
The Respondent, Interstate Security Services, Inc.,
Haddam, Connecticut, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Requiring that employees participate in employer
investigatory interviews or meetings without representa-
tion by a fellow employee, when employees have reason-
able grounds to believe that the matters to be discussed
I Respondent further contends that Sec. 8(aXI) bars no-solicitation
rules only when employees have not already organized themselves and
that there can be no interference with employees' rights to self-orgnizu-
tion after a Board certification has issued. I find no authority, and Re-
spondent has cited none, that Sec. 8(aXI) and Sec. 7 rights are erased
once a labor organization successfully organizes employees in an appro-
priate unit. Legions of decisions hold otherwise. Finally, because the
Federation was certified as the exclusive bargaining representative of the
guards on February 27, 1980, it would appear that Respondent's rule was
unilateral and in violation of Sec. 8(aX5) of the Act. However, because
my recommended Order tinder Sec 8(a)(1) adequately remedies the vio-
lation, it is unnecessary to find an additional violation of the Act.
a See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may result in their being the subject of disciplinary
action, and disciplining employees for refusing to submit
to such employer interviews or meetings.
(b) Interfering with, restraining, or coercing employees
by discharging them for engaging in protected concerted
activities.
(c) Promulgating any rule prohibiting employees from
engaging in union activities during working hours so
long as their activities do not interfere with their work.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Offer Raymond A. Way immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any
loss of pay he may have suffered by reason of his dis-
charge, in the manner provided in the section of this De-
cision entitled "The Remedy."
(b) Revoke its rule promulgated on March 3, 1980,
prohibiting employees from engaging in any union activi-
ties during working hours.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its premises in Haddam, Connecticut,
copies of the attached notice marked "Appendix."' 0
IO In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that, pending final disposition
of this proceeding, pages 61-66, 158-160, and 261-268 of
the official transcript be placed under seal and not be dis-
closed to any person other than the parties herein, their
attorneys, or the Board or its agents and representa-
tives. I t
IT IS FURTHER ORDERED that the complaint in Case
39-CA-96 be, and the same hereby is, dismissed insofar
as it alleges violations of the Act not specifically found
herein.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
II During the course of the hearing, Respondent contended that cer-
tain testimony ought to be shielded from public disclosure because the
information related to security procedures might be taken advantage of
by those persons so inclined. I granted the motion. However, upon
review of the actual testimony thereafter given, I am inclined to believe
that much, but not all, of the testimony was not nearly as dangerous as
Respondent suggested. Nonetheless, in fairness to Respondent, and in
order to avoid any possible prejudice, I have continued my prior order,
pending action thereon by the Board.
14