PARAGON SYSTEMS, INC.

National Labor Relations Board - Administrative Judge Opinions

Feb 7, 2014

10-CA-095371 (N.L.R.B. Feb. 7, 2014)

JD(ATL)–05–14
Savannah, GA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
PARAGON SYSTEMS, INC.
and Case 10–CA–095371
ARTHUR J. BLAKE, an Individual
Elaine Robinson-Fraction, Esq. ,
for the General Counsel.
Thomas P. Dowd, Esq.,
for the Respondent.
Jacqueline K. Taylor, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HEATHER JOYS, Administrative Law Judge. This case was tried in Atlanta,
Georgia, from December 4 – 6, 2013. Arthur J. Blake filed the charge on December 19, 2012,
and the General Counsel issued the complaint on September 18, 2013. Respondent filed a timely
answer denying the essential allegations of the complaint.
The complaint alleges Respondent, Paragon Systems, Inc., discharged three employees –
Charging Party Arthur Blake, Joel Baker, and John Holland – because of their union activities.
Respondent denies the allegation, asserting that all three employees were fired for breaches of
their security duties and lack of candor in an investigation of those breaches.
On the entire record, including my observation of the demeanor of the witnesses, and
after thoroughly considering the parties’ briefs, I make the following
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2
FINDINGS OF FACT
I. JURISDICTION1
5
Respondent, Paragon Systems, Inc., is an Alabama corporation in the business of
providing armed guard and security services. It contracts with the Government, primarily the
Department of Homeland Security, Federal Protective Services (FPS) (Tr. 296)2. During the past
12 months, a representative period, Respondent has performed services for the Government in
the State of Georgia valued in excess of $50,000. Respondent admits, and I find, it is an 10
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
It is admitted, and I find, at all times material here, Director of Human Resources Nicole
Ferritto; Contract Manager Vernon Fields; and Assistant Contract Manager Veronica Edmiston
were supervisors and agents of Respondent within the meaning of Section 2(11) and (13) of the 15
Act.
The parties admit, and I find, the United Security and Police Officers of America (the
Union) is a labor organization within the meaning of Section 2(5) of the Act.
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent’s primary business is providing security guards to various agencies of the25
Federal Government under contracts with FPS (Tr. 296). FPS is Respondent’s largest client.
Respondent, in turn, is a party to approximately 40 percent of FPS’s contracts for security
services (Tr. 305–06). Under these contracts, Security guards hold the title of Protective
Security Officer or PSO. Nationwide, Respondent employs approximately 5,400 PSO’s (Tr.
297). In Georgia, Respondent employs 340 PSO’s to provide services to 66 facilities (Tr. 484).30
B. Respondent’s Contract with the Federal Government
Contracts between Respondent and FPS have a 5-year term (Tr. 299). However, every 6
months, Respondent is evaluated on compliance and a Contractor Performance Assessment 35

1 The Respondent raised in its Answer and in a footnote in its brief that any actions taken by this Board,
including its agents and delegates lacks authority because the court in Noel Canning v. NLRB, 705 F.3d 490
(D.C. Cir. 2013), cert. granted 81 U.S.L.W. 3695 (U.S. June 24, 2013 (No. 12–1281), found the recess
appointments of Members Sharon Block and Richard Griffin were unconstitutional and invalid. Thus,
according to Respondent, the Board lacks a quorum. The Board does not accept the decision in Noel
Canning, in part, because there is a conflict in other circuits regarding this issue. See Belgrove Post Acute
Care Centers, 359 NLRB No. 77, slip op. at fn. 1 (2013). Furthermore, the Board has determined that
while the question regarding the validity of the recess appointments remains in litigation and pending a
definitive resolution it will continue to fulfill its obligations under the Act. See Bloomingdale, Inc., 359
NLRB No. 113 (2013); ORNI 8, LLC, 359 NLRB No. 87 (2013).
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General Counsel’s
exhibits; “Jt. Exh.” for Joint exhibits; “R Exh.” For Respondent’s exhibits; and “CP Exh.” for Charging
Party exhibits.
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3
Report is prepared by the Government every year (Tr. 307; R Ex. 4 p. 68). In addition, the
contractor and FPS representatives are required to meet at least once per year to discuss contract
performance issues (R Ex. 4 p. 6). Laura Hagan, Respondent’s general counsel, testified that the
most important factor assessed in these evaluations is the responsiveness of the contractor to FPS
requests (Tr. 308). Responsiveness is also a consideration when a contractor is bidding to renew 5
a contract.
Every contract between Respondent and FPS contains a “Statement of Work.” (Tr. 305.)
This “Statement of Work” governs, among other things, the qualifications and expected conduct
of PSO’s (R Exh. 4). PSO’s must meet certain minimum qualifications, undergo a formal 10
“adjudication” by FPS, meet certain medical requirements, undergo training, and pass a series of
examinations in order to perform work on the contract (R Exh. 4, pp. 9-10). In addition, the
“Statement of Work” mandates PSO’s follow FPS’s Security Guard Information Manual (SGIM)
and the rules of conduct set out therein (Tr. 305; Jt. Exh. 2; R Eh. 4).
15
As required under the “Statement of Work”, section 7 (R Exh. 4, p. 21), Respondent has
individuals within Georgia responsible for oversight of its contracts within the State. At all
relevant times, the program manager for Georgia was Vernon Fields (Tr. 483). Fields had been
an employee of Respondent for the previous 5 years. His responsibilities included oversight of
PSO’s employed by Respondent within Georgia ensuring that personnel assigned to work on the 20
contract followed the rules and codes of conduct (Tr. 483–484).
Fields’ assistant was Veronica Edmiston. Edmiston had been employed by Respondent
for 7 years (Tr. 531). Prior to becoming Fields’ assistant, she had been a contract manager in
Alabama and South Carolina. She became assistant contract manager for Georgia in 2008. Her 25
primary responsibility was oversight of the 25 facilities for which Respondent had contracts in
the southern part of Georgia (Tr. 532).
FPS also employs individuals to oversee the performance of the PSO’s onsite. The FPS
official with daily oversight of the contract between Respondent and FPS in Georgia during the 30
relevant time period was Jennie Dingman. Dingman’s title was contract officer’s technical
representative (COTR). Dingman in turn reported to Lawanna Nunnally whose title was contract
specialist (Tr. 434). Ultimately, Nunnally reported to the contracting officer (CO), who was
Michael Deprecio (Tr. 434).
35
Dingman had been an employee of FPS since May of 2003 (Tr. 378). She held several
positions before being promoted to the COTR position for Georgia in October 2011 (Tr. 378).
Her duties as COTR included monitoring work on the contract and being the technical
representative for FPS in Georgia. She physically inspected the various buildings over which
she had oversight upon request (Tr. 379). 40
During the relevant time, Respondent’s contract with FPS for Georgia included providing
security to a Federal facility in Savannah that housed the Army Corps of Engineers (the ACE
facility). This was a limited access facility with three secured entrances and five security guard
stations or “posts.” (Tr. 135). There are three posts at the main entrance and one each at the 45
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4
loading dock and garage (Tr. 136). Guards serve 30-minute shifts at each post, rotating from
post to post throughout the day (Tr. 135).
C. The Alleged Discriminatees
5
The complaint alleges three individuals were discharged in violation of Section 8(a)(3)
and (1) of the Act for assisting the Union and engaging in concerted activity. These three
individuals were Arthur Blake, the Charging Party, Joel Baker, and John Holland. Each served
as PSO’s at the ACE facility in 2012.
10
Arthur Blake had been an employee of Respondent from April 1, 2008 until his discharge
on July 12, 2012 (Tr. 29). He had worked in various capacities and at various locations
throughout his tenure. Prior to his assignment to the ACE facility, he had served in managerial
positions, including as a lieutenant and sergeant (Tr. 30). He stepped down from his lieutenant
position in 2009 and from his sergeant position in 2011 (Tr. 65–67). At his final post, he served 15
as a PSO. Blake also served as interim union president during the relevant time period and as a
member of the bargaining committee (Tr. 31). There is no evidence that, prior to his suspension
and termination in July of 2012, Blake had been disciplined by Respondent.
Joel Baker was also employed with Respondent from April 2008 through July 2012 (Tr. 20
133). During his tenure, he served as a PSO at the ACE facility in Savannah (Tr. 133). Baker
also served as secretary of the Union from December 2011 through July 2012 (Tr. 134). There
was no evidence presented that, prior to his suspension and discharge, Baker had been subject to
disciplinary action by Respondent.
25
John Holland was similarly employed by Respondent from April 2008 through July 2012
(Tr. 191). His most recent assignment had been as a PSO at the ACE facility. He also served as
interim vice president of the Union and was a member of the bargaining committee (Tr. 192).
As with Blake and Baker, no evidence of any prior discipline of Holland was presented.
30
D. Prior Board Charges
In March 2011, Respondent entered into a settlement agreement with the Board to resolve
allegations in a charge filed by Blake (GC Exh. 6). In this agreement, Respondent agreed to
revise its “Chain of Command” rule. The prior rule prohibited employees from directly 35
contacting Respondent’s clients or clients’ customers for any reason (GC Exh. 4). The new
chain of command rule contained no such prohibition (GC Exh. 5, p. 17).
E. The 2012 Contract Negotiations
40
The United Security Police Officers of America (the Union) is the exclusive bargaining
representative of PSO’s employed by Respondent in Georgia (Tr. 30). Under the collective-
bargaining agreement in effect from April 1, 2012 through March 31, 2015, Respondent
recognized the Union as the exclusive bargaining representative of the following unit:
45
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5
all armed and unarmed security officers employed by Paragon Systems
performing guard duties as defined by Section 9(b)(3) of the National Labor
Relations Act, assigned to federal facilities throughout the State of Georgia under
the company’s contract HSCEE4-08-A-0001 with the Department of Homeland
Security, Federal Protective Service. . .excluding office clericals, managerial 5
personnel, confidential personnel, supervisors (Lieutenants and Captains)…and
all other personnel. It is expressly agreed and understood between the parties that
persons enrolled or participating in pre-hire training programs offered by the
company shall not be considered employees . . . (Jt. Exh. 1).
10
This collective-bargaining agreement was entered into by the parties in February of 2012 (Tr.
39).
The Union had been the exclusive bargaining representative for unit employees since
December 2011. Previously, the International Union Security Police Fire Professionals of 15
America had been the bargaining representative for the PSO’s. The prior collective-bargaining
agreement included sergeants in the unit. Sergeants were excluded from the unit under the new
agreement. The prior contract with that union expired on July 1, 2011 (R. Exh. 17).
In January 2012, Respondent and the Union entered into contract negotiations for the20
current agreement (Tr. 31). The Union had an 11-member negotiating team. Among the
members of that team were Blake and Holland. Respondent’s negotiating team consisted of
Respondent’s president, Leslie Kaciban, Respondent’s director of employee relations, Roman
Gumul, Fields, and Edmiston. Although details of the negotiation were not made part of the
record, testimony established these negotiations were heated at times. John Kabakova, a member 25
of the Union’s negotiating team, testified without contradiction that Kaciban threatened to fire all
of the Union’s team during these negotiations (Tr. 277).
In the midst of negotiations, on January 22, 2012, the Union issued a strike notice which
it forwarded to all the bargaining committee members (Tr. 33, 72; GC Exh. 3). Fields testified 30
that once the strike had “been made public” the COTR requested Respondent provide FPS with a
contingency plan, which it did (Tr. 510).
Blake testified after the Union issued the strike notice, he had a conversation and
exchanged emails with Gumul and Kaciban (Tr. 73). In these exchanges, the parties agreed to 35
return to bargaining. The parties met first via telephone and then in person on February 16, 2012
(Tr. 73). Ultimately, the parties reached agreement and entered into a new collective-bargaining
agreement on March 19, 2012 (Jt. Exh. 1).
F. The Events of January 31, 201240
Although Blake, Baker, and Holland were not discharged until July of 2012, Respondent
set forth in its termination notices they were discharged because of events that occurred in
January and February of 2012. These events are largely undisputed.
45
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On January 31, 2012, Blake, who was off duty that day, arrived at the loading dock area
of the ACE facility around 12:30 p. m. (Jt. Exh. 4; Tr. 39). The loading dock consists of two
bays with an overhead door. A personnel ramp leads to the dock at which a single guard post is
located (Tr. 135). At this guard post is an x-ray machine and a magnetometer3 (Tr. 135). Blake
parked his car in the loading dock and proceeded to the guard desk (Tr. 40). He was neither in 5
uniform nor carrying a weapon (Tr. 40). On duty at that time was Baker (Tr. 40). Baker handed
Blake some documents, checked his credentials4, noted Blake’s presence on the Officer’s
Operations Log or 1103 form, and allowed Blake entry into the building without going through
the magnatrometer or having him place his packages on the x-ray machine (Tr. 40; 138; 165; Jt.
Exh. 4). 10
The loading dock walls display multiple signs. Posted at the double doors leading into
the building is a sign that indicates the entrance is not an authorized pedestrian entrance and
directs pedestrians to the main or York Street entrance (R. Exhs. 13 and 14). There is also a sign
at the back wall, behind the guard desk. It reads “15 minute parking only” and “for vehicles 15
loading/unloading.” (R. Ex. 15; Tr. 399). It further directs that once loaded or unloaded, a
vehicle must be moved. There is no dispute each of these signs was in place on January 31,
2012.
Once in the building, Blake proceeded unescorted to the office of Colonel Jeffery Hall, 20
the highest ranking official for the Army Corps of Engineers in Savannah (Tr. 39). After a short
wait, Blake was able to see the Colonel (Tr. 43). Blake testified he discussed the contents of the
packet with the Colonel, including the strike notice (Tr. 44). Blake further testified the Colonel
told him he would be taking steps to obtain a contingency plan in the event of a strike by the
PSO’s (Tr. 44).25
At approximately 1 p. m., or 30 minutes after his arrival, Blake returned to the loading
dock (Tr. 45; 139; 168). At that point, Holland had arrived to relieve Baker (Tr. 139). The three
men had a conversation lasting approximately 12 minutes (Jt. Exh. 3, p. 9; Tr. 45; 169; 216).
Blake then left the facility in his car.530
Prior to departing, but while still at the loading dock, Blake also had a conversation with
FPS inspector Beuning (Tr. 46). Blake testified that Beuning was in uniform, from which he
deduced he was on duty. Blake testified Beuning asked him whether he was on or off duty and
Blake responded that he was off duty (Tr. 46). Beuning asked Blake whether he was conducting 35
union business to which Blake responded, “no,” that he had just dropped off a packet to the
Colonel (Tr. 46). Otherwise, Beuning asked no other questions of Blake regarding his business
at the facility and made no comment about his having used the loading dock to enter the building
(Tr. 47). Although Holland confirmed he witnessed this conversation, he testified he could not
hear it (Tr. 192). Beuning did not testify.40

3 The x-ray machine scans packages and the magnetrometer scans people.
4 Blake testified that he had on him his common access card, his GSA badge, and his 24-hour access card
(Tr. 42). However, he did not state which of these he presented to Baker.
5 A video surveillance tape of the loading docket security area was reviewed by Dingman, among others.
Dingman did not provide testimony that disputed the version of events presented by Blake, Baker or
Holland with regard to Blake’s entry into the facility or the length of any of the conversations.
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G. The Investigation
On February 17, 2012, Fields called Dingman to inform her a PSO had contacted the
Colonel at the ACE facility to inform him of a potential strike (Tr. 382; Jt. Exh. 3). Fields 5
testified he called Dingman because he had heard rumors someone had notified the tenant agency
at the ACE facility of a potential strike (Tr. 490). Upon receiving the call, Dingman testified she
felt it necessary to investigate whether a strike was about to take place in order to determine
whether FPS would need to develop a contingency plan to provide security to the ACE facility
(Tr. 384). Further, she testified she felt the most efficient manner to do so would be to contact 10
the security guards at the ACE facility directly.
Dingman first called the security desk at the front entrance to the ACE facility. PSO
Lynn Michael answered the call (Tr. 385). Dingman asked Michael whether he knew of a PSO
delivering a strike notice to the Colonel. He responded he did not. She then asked who else was 15
working and, when informed Holland was working, she asked to speak with him. Dingman
asked Holland whether anyone had been to see the Colonel within the last few days, to which
Holland responded “no.” When she changed her question to ask whether a PSO had been to see
the Colonel at any time to discuss a possible strike, Holland told her he was aware someone had
dropped some paperwork off with the Colonel, but he did not know who or when. Dingman 20
testified she found Holland’s responses to be evasive (Tr. 385). Following this conversation,
Dingman decided to go to the ACE facility to conduct interviews. Dingman did not contact the
Colonel to ask him who had brought him the notice (Tr. 453).
Dingman went to the ACE facility on February 22, 2012, to begin to conduct an 25
investigation. Prior to going to the facility, Dingman called both her supervisor, John Hathaway,
and Edmiston (Tr. 385). Her intention was to have both present for interviews.
Dingman conducted her interviews in the PSO break room at the ACE facility. Upon
first arriving at the break room, Dingman found Baker already there (Tr. 387). Dingman 30
informed him he would be interviewed at that time. According to Baker, he first asked to speak
with a union representative, but Dingman denied the request saying this was not a union matter
(Tr. 176). Baker next asked to talk with a company representative to obtain permission to speak
with Dingman (Tr. 176–177; 388; Jt. Exh. 3). Dingman allowed him to call Edmiston (Tr. 388).
Edmiston was scheduled to be there, but had not yet arrived. When reached on her cell phone, 35
Edmiston told Baker to go ahead with the interview (Tr. 177; 388).
Dingman testified she found Baker to be evasive initially (Tr. 389–390). Specifically,
she testified Baker responded to her questions with questions, rather than answers. However,
after Edmiston arrived and after Dingman told Baker his actions “could be construed as 40
obstructing an investigation,” he became, in her assessment, more forthcoming (Tr. 389–390).
Ultimately, Baker told Dingman Blake had come to the building “much earlier” than her
question had implied (Tr. 142).
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Baker also informed Dingman he had made a notation of Blake’s visit on the 1103 form
at the time of his arrival (Jt. Exh. 3). At that point, Edmiston reviewed these forms and found the
exact date Blake had come to the building. Hathaway also obtained the video surveillance tape
of the loading dock for January 31, 2012, and he, Dingman and Edmiston reviewed it (Jt. Exh. 5
3).
During this interview, Dingman asked Baker several questions about his understanding of
the rules of conduct for PSO’s. Dingman asked Baker why he had allowed Blake to use the
loading dock entrance (Tr. 142; 392). Baker responded it was his understanding the loading 10
dock could be used for building access as long as the individual employee did not intend to be
there more than 15 minutes and had his government issued credentials (Tr. 392). It was during
this part of the interview that Dingman informed Baker such credentials were to be used for work
purposes only; reminding him he had been previously so trained (Tr. 183; 405; Jt. Exh. 3).
Baker testified Dingman also informed him that off-duty PSO’s were to be treated as visitors for 15
purposes of entry into the building (Tr. 184). Baker told Dingman he was unaware of that rule,
but would follow it in the future (Tr. 184; Jt. Exh. 3). Dingman also asked Baker whether he was
aware he was not to speak directly with tenants of the building in which he worked (Tr. 142; Jt.
Exh. 3). Baker responded PSO’s had a “ruling” from the “NLRB” stating restricting PSO’s
from speaking with the client was “unlawful.” (Jt. Exh. 3; Tr. 143). Dingman then asked Baker 20
whether he took his orders from Respondent or the “NLRB.” (Tr. 143; Jt. Exh. 3). Baker
responded he took orders from Respondent “with in (sic) the parameters of the law.” (Jt. Exh. 3).
At some point in the interview of Baker, the issue of the strike was also discussed. Baker
testified Dingman stated to him if the Union were to strike, the PSO’s could be removed from the 25
contract and would never work another Federal contract again (Tr. 141; 185). Dingman testified
she made a statement to Baker to the effect he “ran the risk” of not being able to work another
Federal contract if he participated in a strike (Tr. 408).
The same day, Dingman interviewed Blake (Tr. 409). According to Dingman’s report, 30
Blake told her he was the PSO who had delivered the strike notice to the Colonel (Jt. Ex. 3 p. 5).
Blake told Dingman he had come to see the Colonel because the Colonel was mentioned in a
letter Blake had written to the President of the United States about the PSO’s working
conditions, and Blake felt the Colonel should be informed of past events leading to the writing of
that letter and the strike vote (Jt. Exh. 3, p. 5). The packet of materials Blake delivered to the 35
Colonel did contain correspondence dating back to early 2011 as well as a letter to President
Obama (GC Exh. 2).
During her interview of Blake, Dingman also asked him about his understanding of
certain rules of conduct for PSO’s. Dingman wrote in her report that she asked Blake about “the 40
NLRB saying it is illegal for PSO’s to be told they cannot converse company or personal
business to tenant Agencies” to which he responded, “yes.” (Jt. Exh. 3, p. 5). Blake testified he
told Dingman he had sent a copy of the settlement to Edmiston and Edmiston offered to forward
a copy to Dingman (Tr. 48–49). Dingman also asked Blake whether he understood he could not
use his Government issued credentials for personal business to which Blake responded, “no” (Jt.45
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9
Exh. 3). She asked Blake whether he understood he could not fraternize or converse about
personal business while on post, to which Blake responded he understood he was to keep such
conversation to a minimum. Finally, she asked whether he understood using his credentials to
enter the building through the loading dock was a misuse of his credentials, to which he
responded, “no.” 5
Dingman’s report also indicates she and Blake discussed Blake having previously entered
Federal buildings off duty, both in and out of uniform. According to the report, Blake told
Dingman he did not believe doing so constituted any type of rule violation (Jt. Exh. 3 p. 6).
Dingman wrote in her report Blake “showed no remorse” for his actions and “continued to 10
believe everything he had done was acceptable.” (Jt. Exh., 3 p. 6). Dingman similarly testified
she perceived Blake as unconcerned with her investigation because, in his mind, he had done
nothing wrong (Tr. 409).
Blake testified, in discussing the strike, Dingman told him if the union did strike, the 15
PSO’s would lose their jobs and never be able to work on another Federal contract (Tr. 49).
Blake testified, although present, Edmiston made no comments when Dingman made this
statement. Dingman did not deny making this statement.
Dingman returned to the ACE facility on the following day to interview Holland (Tr. 20
414; Jt. Exh. 3 p. 7). Dingman testified she initially confronted Holland about the telephone
conversation in which he had claimed only to know that a PSO had dropped some information
off to the Colonel (Tr. 416). According to Dingman’s report, Holland admitted he had not told
her he knew Blake had been to see the Colonel because he “didn’t want to get in trouble” (Jt.
Exh. 3, p. 8). As with the other two interviews, Dingman asked Holland about his understanding 25
of the use of his Government issued credentials for personal use, socializing on post, and
allowing Blake to enter the building through the loading dock and without screening him (Jt. Ex.
3 p. 8). As with Baker and Blake, Holland responded he did not understand using his
Government issued credentials to enter a Federal building while off duty was improper (Tr. 201).
30
H. Dingman’s Conclusions and Report
Dingman ultimately reduced her findings to a written report (Jt. Exh. 3). In it, she
summarized her interviews and stated her conclusions about the rule infractions committed by
the three PSO’s. She found Baker had allowed Blake to park in the loading dock, did not process 35
Blake as a visitor, but allowed him access without screening, allowed Blake to enter a restricted
area without an escort, and was not “forthcoming” in his responses during the investigation (Jt.
Exh. 3, pp. 3–5). She found Blake had parked in unauthorized area, entered the building while
off duty but did not do so as a visitor, entered a restricted area without an escort, and improperly
used his Government issued credentials to enter the facility (Jt. Eh. 4, pp. 6–7). Finally, 40
Dingman found that Holland had “blatantly lied” to her and socialized while on duty (Jt. Exh. 4,
p. 9). Dingman’s report details the interviews she conducted and contains each individual’s
written statement. The report does not make note of Dingman’s comments regarding the strike.
JD(ATL)–05–14
10
Dingman’s report specified Baker and Blake had violated certain provisions of the Code
of Federal Regulations and the SGIM. With regard specifically to the SGIM, Dingman wrote
that Baker, in not treating Blake as a visitor while off duty, violated section 2.2 of the SGIM
which requires PSO’s to “observe and monitor building occupants and visitors for compliance 5
with the facility’s posted rules and regulations.” He also violated two other portions of section
2.2 by allowing Blake to park in the loading dock area. Specifically he violated a provision
titled, “Traffic control” that states, “Depending upon your location and based on your post order,
you may be required to direct traffic, control parking, issue courtesy traffic violation notices on
federal property” and a provision titled “Unauthorized Access” which requires the PSO to 10
“prevent, discover, delay and/or detain persons attempting to gain unauthorized access to the
property. . .” Dingman also found Baker had engaged in conduct listed as unacceptable in the
SGIM. Specifically, Baker had violated rule 6 which lists as unacceptable conduct dishonesty
which includes lying to one’s supervisor; rule 9 which lists as disregarding orders; rule 10 which
lists “immoral conduct or any other criminal act;” rule 13 which lists negligence of duty; rule 19 15
which prohibits the “unethical or improper” use of official authority, credentials or equipment;
and rule 22 which requires PSO’s to cooperate with government officials or the employer during
an official investigation (Jt. Eh. 4, pp. 4-5). Blake was similarly found to have violated rules 6,
9, 10, and 19. Holland was found to have violated rules 6 and 9 only.
20
Dingman’s report ends with her conclusion that the actions of Blake, Baker and Holland
did not meet the “Government standards of this contract.” (Jt. Exh. 4, p. 10). She further wrote:
They have their own agenda and have proven with their actions listed above the
security of the Federal Facility for which they are assigned come second to 25
handling their own personal grievances. It is my professional opinion as the
COTR of this contract that all three PSO’s be removed. They have less than
stellar candor and have shown without a shadow of a doubt their disregard for the
safety of the government’s facility, information or employees.” (Jt. Ex. 4 p. 10).
30
Dingman testified that, immediately following the interviews, she spoke on the phone
with Nunnally6 about her concerns. However, Nunnally informed her she would take no action
until she had seen a written report. On May 31, 2012, Dingman completed her report and
forwarded it to Nunnally. Nunnally did not testify and there was no evidence presented to
establish Nunnally brought the matter to the attention of the CO. Rather, Nunnally forwarded 35
the report directly to officials for Respondent on July 6 (R. Exh. 5). Dingman testified that
approximately three months passed before she completed her report because she had attended a
two week training session in the interim and because she had other duties (Tr. 473). The record
is silent as to whether Nunnally forwarded the report to the CO or why a month passed before
she forwarded it to Respondent. 40

6 Dingman’s report incorrectly identifies Nunnaly as the contracting officer. She, in fact, is a contracting
specialist with less authority than a contracting officer.
JD(ATL)–05–14
11
I. The Decision to Discharge Blake, Baker and Holland
Hagan testified she was involved in the decision to terminate Blake, Baker and Holland.
She testified she received Dingman’s report via email from Respondent’s director of employee 5
relations Nicole Ferritto on July 6, 2012 (Tr. 312). She stated this was the first she had been
made aware of these issues (Tr. 313). Hagan received the report on a Friday and discussed it the
following week with Ferritto and Respondent’s director of labor relations, Roman Gumul (Tr.
313–314). Neither Feritto nor Gumul testified.
10
Hagan testified in reviewing Dingman’s report, she considered its detail and conclusions.
Specifically, she noted the allegations that the individuals had violated security, had not been
candid in the investigation, and that Blake had shown no remorse were, in her assessment, all
supported with factual detail (Tr. 314–-317). Moreover, she testified she “completely agreed
with” the conclusions reached by Dingman in her report (Tr. 318).15
Hagan testified she concluded, based on the findings in Dingman’s report, the conduct of
the PSO’s had a negative impact on their ability to do their jobs (Tr. 318). She specified because
PSO’s may be called upon to testify in court proceedings regarding events occurring on the job, a
finding that they are untruthful “completely destroys their ability to do a fundamental part of 20
their job.” (Tr. 319). Hagan testified she believed Dignman was “genuinely disturbed” by the
PSO’s conduct and she was as well (Tr. 319).
In addition to her concerns about what Dingman had found with regard to the PSO’s
dishonesty, Hagan testified it was also wrong for an off-duty PSO to use his credentials for 25
access to the ACE facility (Tr. 319–320). She testified that doing so violated the SGIM at
section 5.5 (Tr. 320; Jt. Ex. 2 p. 37). She also stated the conduct violated Respondent’s rules for
personal conduct in the employee manual, but did not specify which rule (Tr. 321). She stated
she interpreted the rule in the SGIM to limit the use of a PSO’s credentials to allow access to the
building only when on duty (Tr. 323). Hagan testified she interpreted Dingman’s report to 30
conclude the named PSO’s no longer met the “contract criteria and constituted a security risk if
they were to be retained under the contract.” (Tr. 323.) She further testified she agreed with that
conclusion.
Hagan also testified Respondent had no choice but to follow Dingman’s recommendation 35
(Tr. 323). She clarified, however, that under certain circumstances, Respondent would not have
to follow such recommendations, such as if the recommendation was not supported by relevant
facts (Tr. 323). She explained Respondent’s recourse in such a situation would be to appeal to
the CO who could overrule the COTR. Hagan testified Respondent chose not to do so here
because the recommendation was supported by specific facts (Tr. 324). No one employed by 40
Respondent conducted any further investigation (Tr. 351–352). Rather, Hagan testified she
reviewed several documents, including the collective-bargaining agreement, noting that because
FPS had requested the PSO’s be removed from the contract, the grievance and arbitration
provisions of the collective-bargaining agreement did not apply (Tr. 324). Although she was
present for the three interviews, Edmiston did not speak to anyone about the investigation (Tr. 45
368).
JD(ATL)–05–14
12
Respondent first suspended Blake, Baker and Holland on July 10, 2012 (GC Exh. 8; 10;
and 12). Prior to their suspensions, the three PSO’s continued to work their usual assignments.
The suspension notices indicate the three were being suspended pending further investigation
and were each signed by Edmiston. On July 12, 2012, Respondent discharged the three PSO’s 5
(GC Exh. 9 11; and 13). The discharge letters were signed by Ferritto and state the PSO’s were
being discharged at FPS’s request.
J. Discipline of PSO’s
10
The “Statement of Work” provides circumstances under which a PSO may be removed
from work on the contract. The “Statement of Work” holds the contractor responsible for
disciplinary action “as may be necessary” to maintain “standards of employee competency,
conduct, appearance, and integrity” (R. Exh. 4 p. 43). The COTR and the CO have the authority
to direct the contractor to retrain, suspend, or remove an employee from work on the contract (R 15
Exh. 4, p. 43). Under this provision FPS may request the removal of a PSO from work on the
contract and the contractor “must comply” in a timely manner (R. Exh. 4, p. 43). PSO’s
discharged on request of FSP may not invoke the grievance and arbitration provisions of the
collective-bargaining agreement (Jt. Exh. 1, p. 15)
20
FPS in turn has a directive that addresses PSO removal from a contract (GC. Exh. 14).
This directive indicates it was developed to provide “a formal and standardized process to ensure
the prompt and proper removal of PSO’s who fail to conform to the requirements as outlined in
the contract . . .” (GC Exh. 14 p. 1). Under this directive, all recommendations to permanently
remove a PSO from a contract “shall go before a Review Board for final approval.” (GC. Exh 14,25
p. 3). The Review Board is a standing committee that meets weekly and consists of
representatives from FPS’s Office of the Principal Legal Advisor and the Acquisition’s Division
Consolidated Contracting Group (GC Exh. 14 p. 2). The directive further states, “[n]o PSO shall
be removed at the direction of the Government prior to obtaining approval of the Board.” (GC
Exh. 14, p. 5). A PSO may be temporarily suspended, pending investigation and Board 30
presentation, however, if the CO and the COTR determine the conduct requires such immediate
suspension (GC Exh. 14, p. 5). Finally, the directive contains a form upon which formal requests
for PSO removals are made (GC. Ex. 14 p. 7).
Dingman testified she was familiar with this directive (Tr. 440). It was not followed in 35
this case, according to Dingman, because Respondent chose to discharge Blake, Baker, and
Holland without going through the formal process (Tr. 441).
Respondent also has a Security Officer Handbook that contains rules of conduct and
Respondent’s progressive disciplinary policy (GC Exh. 5). With regard to rules of conduct, the 40
handbook delineates major offenses, for which a violation may result in discharge “after unpaid
suspension and management investigation” and minor offenses for which a violation may result
in counseling or a written warning “in accordance with” Respondent’s progressive discipline
policy (GC Exh. 5 at 48–50). These rules of conduct are similar to and, in some respects, mirror
the rules of conduct in the Statement of Work and the SGIM (R. Exh 4; Jt. Exh. 2).45
JD(ATL)–05–14
13
The handbook also contains Respondent’s progressive disciplinary policy and procedures
(GC Exh. 5 at 52–54). The procedure has four steps. These are, in order of severity, an oral
reprimand; written reprimand; unpaid suspension; and termination. It contains a caveat that
where a major offense has been committed, steps one and two may be combined. It also gives
management the authority to immediately suspend a PSO pending an investigation for conduct 5
such as physical attacks, threats of violence, theft or harassment. Additionally, PSO’s who
commit acts of violence or “other egregious misconduct or serious safety violations” may be
terminated, depending on the outcome of an investigation. The handbook also lists types of
conduct for which discharge may be appropriate in the case of a first offense. These include, but
are not limited to, refusal to submit to or failure to pass a random drug test; acts of or threats of 10
violence; physical attacks; theft; or harassment (GC Exh. 5, p. 52).
The discharge notices Respondent issued to Blake, Baker, and Holland do not reference
any prior discipline or the applicability of progressive disciplinary policy.
15
K. Rules governing off-duty PSO’s
Respondent contends Blake and Baker were discharged for violating rules governing
entrance to a secure Federal facility by PSO’s while off duty. The rules governing the manner in
which PSO’s allow any individual to enter a Federal facility are covered in the SGIM and in 20
“post orders.” The SGIM contains rules applicable to all PSO’s and all facilities protected by
FPS. Post orders are specific to the facility and, Dingman testified, are developed by the
“facility security committee.” (Tr. 467–468; R Exh. 1).
Dingman testified that under the post orders for the ACE facility, an off-duty 25
Government employee is allowed access without screening, but a PSO is not (Tr. 202; 402).
However, the written post orders in the record for the ACE facility only detail the procedure for
processing a visitor (R Exh. 1). They do not define a visitor or specifically address how to treat
off-duty employees or PSO’s. Dingman and Hagan testified this distinction is based on an
interpretation of the rules governing use of government issued credentials found in the SGIM 30
(Tr. 320). Additionally, Fields and Edmiston testified that off-duty PSO’s were to be treated as
visitors, PSO’s were aware of this rule, neither had ever witnessed a violation of the rule, and not
following the rule was a significant security breach.
Respondent called Donald Holcomb, its corporate training officer, to testify about 35
training of PSO’s on this subject. He testified he trains PSO’s that they can use their credential
“only when they are on duty.” (Tr. 566) He went on to specify that PSO’s are taught they cannot
use their credentials to “get out of a ticket.” (Tr. 569) He went on to testify that when PSO’s
come to work, “whenever they come into the building…they are still required to go through the
screening process because they’re not on duty.” (Tr. 571) This suggests that PSO’s are never 40
allowed entry into the building without being screened as a visitor, as they are only on duty when
they are on post. When asked specifically whether PSO’s were trained that an individual with
“any form of Federal credential can enter a Paragon protected building and use that Federal
credential to circumvent the magnetometer and x-ray screening procedures,” he responded, “No,
because what I tell these guys is that you do not allow this person past you unless you’re 45
satisfied.” (Tr. 574) Holcomb had previously testified that when making this determination, the
JD(ATL)–05–14
14
PSO is trained to check the identification and if “it grants them in the building and it’s them and
it’s valid and all that kind of stuff, bypass the system.” (Tr. 571) I find this not only confusing,
but inconsistent with other testimony that PSO’s must be treated as visitors when off duty.
In contrast, several current and former PSO’s testified that PSO’s have used their 5
credentials to by-pass screening to enter secure Federal facilities, including the ACE facility
while off duty (Tr. 57–72; 99–102; 201-–207; 249; 268–280; 586–592). In addition to testifying
this was a wide spread practice, several individuals testified this was done in the presence of
officials from FPS and management with Respondent. It is also undisputed that an FPS inspector
spoke with Blake on January 31 as he was leaving the loading dock, and did nothing. Kabakova 10
testified Fields was among Respondent’s managers who witnessed such conduct and took no
action (Tr. 280; 596–592). 7
On this issue, I credit the testimony of Arrick Todman, a PSO working currently on the
Georgia contract in Atlanta (Tr. 588).8 Todman had been trained on the SGIM as recently as 15
2011 (Tr. 587). He testified specific rules regarding entry into Federal facilities by off-duty
PSO’s was not a subject of that training (Tr. 587). He also testified it was common practice for
off-duty PSO’s to use their credentials to enter these facilities without being screened (Tr. 587–
588). Moreover, he was able to provide examples of specific instances in which Respondent’s
supervisors had either engaged in such practice or witnessed it. Todman was straightforward in 20
his responses and no evidence of bias was elicited. Therefore, I find the rule at issue was neither
interpreted nor followed by the PSO’s in the manner Respondent purports.
L. Discharges for Security Rule Violations
25
Respondent presented evidence that both before and after this incident, it discharged
employees for security breaches and lack of candor. Hagan testified that in February of 2013,
PSO Dozier was discharged for improper use of his access card (Tr. 326). Specifically, Hagan
testified Dozier had used his “after hours” access card to enter a closed secure Federal facility to
allow a friend to use the restroom (Tr. 327). Because it was after hours, there was only one, 30
roving, PSO on site. That PSO reported the incident and Dozier was discharged (Tr. 327).
There were no further details in the record and no documentation to corroborate this testimony.9
The second discharge also involved allowing access to an individual who was required to
be screened. In this instance, Darnell Williams, a PSO in Chicago, allowed a contractor’s 35
employee into a secure building without screening (Tr. 327–328; R Exh. 6, 7, and 8). He first
disavowed any recollection of the incident, but later admitted to it. According to the inspection
form, Williams had been repeatedly informed about specific rules addressing contractor
employee identification (R. Exh. 6). Respondent issued Williams a suspension notice 6 days

7 I found Kabakova’s testimony on this credible. Although Kabakova was often vague, failing to recall
dates, he did not appear deliberately evasive. Moreover, his testimony was consistent with other PSO’s
testimony on this point.
8 I found Lynn Michael, Kabakova, Blake, Baker, and Holland all credible on this issue as well. All were
consistent with regard to the lack of a specific rule or training and that bypassing screening when off duty
was common practice. I make note of Todman’s testimony because he had been most recently trained, so
would be the most familiar with the training, and his demeanor evinced no bias.
9 Hagan was unable to remember the date of the incident or individual’s full name.
JD(ATL)–05–14
15
after the incident (R. Exh. 7). Hagan testified Williams was discharged, but the record does not
contain a termination notice, only an email indicating a decision had been made to terminate him
(R. Exh. 8).
III. DISCUSSION AND ANALYSIS5
A. Respondent’s Affirmative Defenses
Respondent contends as a threshold matter, that the Board lacks authority to review the
termination decisions of Blake, Baker, and Holland because they were based on considerations 10
of national security. Respondent bases this contention on the Supreme Court’s ruling in
Department of the Navy v. Egan, 484 U.S. 518 (1988). In Egan, the respondent was a civilian
employee of the Navy who was promoted, conditional on a finding of eligibility, to a position
classified as “sensitive.” Id. at 521. Eligibility for the job included successfully obtaining a
security clearance from the Department of the Navy. Following an investigation, the Navy 15
denied Egan his security clearance, rendering him ineligible for the job. He appealed that
decision to the Merit Systems Protection Board (MSPB). The Court held the MSPB did not have
the authority to review the decision to deny the security clearance because that decision was
“committed by law” to the discretionary judgment of the agency responsible for the protection of
the classified information. Id. at 527–529. The Court’s decision in Egan has been extended to 20
preclude judicial review of security clearance determinations as well as the decision to conduct a
security clearance review.
Upon careful consideration of the Court’s holding in Egan, I find the facts in the instant
matter are inapposite and reject Respondent’s argument.10 In the instant case, FPS did not 25
require the PSO’s at issue to have a security clearance. As Hagan clarified in her testimony,
PSO’s have a “suitability,” determination, not a security clearance (Tr. 330). Indeed, under the
Statement of Work, all PSO positions require a suitability determination, while only certain
positions require a security clearance (R Exh. 4, p. 59). A required security clearance is provided
by the agency requiring the clearance, in other words, the agency responsible for the protection 30
of the classified information. The suitability determination is made by FPS (Tr. 331; R Exh. 4).
A suitability determination is valid for 5 years, absent an intervening event that would render the
individual unsuitable for work on a contract. Hagan admitted there was no change in FPS’s
suitability determination for Blake, Baker, or Holland (Tr. 332). Unlike the employer in Egan,
Respondent made the decision to discharge its employees prior to any revocation of FPS’s 35
suitability determination. Even if the Court’s holding in Egan were to apply to FPS’ revocation
of suitability determinations, it would not apply in the instant case because FPS did not revoke
any of the PSOs’ suitability determinations, nor does Respondent contend that the investigation
by Dingman was initiated in order to review the suitability determination. Thus, Respondent’s
reliance on Egan to shield its decision from Board review is misplaced.40
Respondent also contends that the “federal enclave doctrine” precludes the Board from
regulating “conduct occurring on” the ACE facility (R. Br. at 50). I find Respondent’s
contention without merit. Respondent relies on the Supreme Court’s holding in Goodyear
Atomic Corp. v. Miller, 486 U.S. 174 (1988), in which the Court found activities on federal 45

10 The General Counsel did not brief this issue.
JD(ATL)–05–14
16
facilities are shielded from direct regulation by a State under the Supremacy Clause. Because
this matter does not involve any type of State regulation, I find the “federal enclave doctrine”
does not apply.
B. Unfair Labor Practices5
1. Legal framework
An employer violates Section 8(a)(3) and (1) of the Act if it discharges an employee for
engaging in union activity. The Board applies the framework for deciding allegations of such 10
discriminatory discharge set out in its Wright Line decision. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under this
framework, the burden is on the General Counsel to make out an initial showing that the
employee’s protected or union activity was a motivating factor in the adverse employment
action. In order to establish this initial showing, the General Counsel must prove: (1) the 15
employee engaged in union or concerted activity protected by the Act; (2) the employer knew of
the concerted nature of the activity; and (3) the adverse action taken against the employee was
motivated by the activity. Circumstantial evidence, such as suspicious timing, false reasons,
failure to adequately investigate misconduct, departures from past practices, tolerance of
behavior for which the employee was allegedly fired, and disparate treatment, may be used to 20
show discriminatory motive. Medic One, Inc., 331 NLRB 464 (2000).
Once the General Counsel has met its this initial showing that the protected activity was a
motivating or substantial reason for the employer’s decision to take adverse action, the burden of
persuasion shifts to the employer to demonstrate that it would have taken the same action even in 25
the absence of the protected activity. Consolidated Bus Transit, 350 NLRB 1064, 1065–1066
(2007); Palace Sports & Entertainment, Inc., v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
2. Contentions of the parties
30
The General Counsel contends Respondent discharged Blake, Baker, and Holland
because they engaged in union and concerted protected activities. Blake, Baker, and Holland
were each officers in the new union and participants in the negotiations for a new collective-
bargaining agreement, and brought workplace concerns and the potential for a strike to the
attention of the facility tenant. The General Counsel contends because of this protected activity 35
Respondent initiated and participated in an investigation undertaken by FPS which was
motivated by antiunion animus, and ultimately acquiesced in FPS’s unlawfully motivated request
to discharge Blake, Baker, and Holland.
Respondent contends that the General Counsel cannot meet her initial burden under 40
Wright Line to establish that antiunion animus played any part in the decision to discharge Blake,
Baker, and Holland. Respondent contends the record contains no direct evidence of animus on
the part of its decision makers. Further, Respondent contends, even if the General Counsel could
prove discriminatory animus, it would have taken the same action in the absence of the
discriminatory motive. Respondent contends it was obligated under its contract with FPS to take 45
whatever action FPS requested. Moreover, Respondent contends, none of its decision makers
JD(ATL)–05–14
17
could have been aware of any discriminatory motivation on the part of Dingman, if one existed,
and that Dingman’s report provides legitimate grounds upon which to discharge Blake, Baker,
and Holland.11
3. Applicability of Capital CMI Music5
The General Counsel contends that the antiunion animus of Dingman should be imputed
to Respondent pursuant to the Board’s holding in Capital EMI Music, 311 NLRB 977 (1993). In
Capital EMI Music, the Board held an employer may be held liable for the discriminatory
employment actions of its joint employer where the record permits an inference that the non-10
acting employer “knew or should have known” the other employer acted with an unlawful
motive and acquiesced in the unlawful action by either failing to protest or “exercise any
contractual right it might possess to resist it.” Capital EMI Music, 311 NLRB 997, 1000 (1993).
A necessary prerequisite for applicability of this theory of liability is a showing that the two
employers are joint employers. The General Counsel has to the burden to make that showing. 15
Here, the General Counsel did not plead joint employer status nor did either party address the
issue in its briefs. Thus, I find joint employer liability was not a matter fully litigated by the
parties and decline to apply the Board’s holding in Capital EMI Music to the instant case.
4. Prima facie case20
I find that the General Counsel has made a prima facie showing under the Wright Line
analysis. Neither protected activity nor knowledge were significantly in dispute as Blake, Baker,
and Holland all held officer positions with the Union and were involved in internal management
of the Union, filing of grievances, communicating with Respondent’s management about 25
working conditions, and, in the case of Blake and Holland, negotiating an initial collective-
bargaining agreement (Tr. 31; 134; 192). Moreover, I find that bringing a potential strike to the
attention of the Colonel was activity protected under the Act. See Eastex, Inc. v. NLRB, 437 U.S.
556, 565–566 (1978). Respondent concedes it was aware each of these individuals was an office
holder with the Union, members of the negotiating team, and, in the case of Blake and Baker, 30
had been involved in raising the issue of a strike with the Colonel.
The final element the General Counsel must establish as part of its initial burden is that
Blake, Baker, and Holland were discharged because of their protected activity. I find the
General Counsel has met that burden. Specifically, I find the circumstances, when viewed as a 35
whole, establish Respondent’s discharge of Blake, Baker, and Holland was discriminatorily
motivated. The preponderance of the evidence supports a finding Respondent was aware
Dingman’s animus toward the protected activity formed the basis for her recommendation yet
deliberately conducted an inadequate investigation into the allegations against Blake, Baker, and
Holland in order to justify its decision to discharge them.40

11 Respondent also contends in its brief that application of the analytical framework set out by the Supreme
Court in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), would not lead to a different result. The General
Counsel has not asserted liability under this analytical framework and, in fact, argued against application of
Akal Security, Inc., 354 NLRB 1 (2009) (applying the Burnup & Sims analysis to the discharge of security
officers at a Federal courthouse). Because the General Counsel does not contend this analytical framework
is applicable, I have not addressed it herein. Further, I find this matter is properly analyzed under Wright
Line because it turns on motive.
JD(ATL)–05–14
18
The investigation that led to the discharge of Blake, Bake, and Holland began with a
phone call from Fields to Dingman on February 17 in which Fields told Dingman a PSO had
contacted the Army Corps of Engineers about a potential strike by the PSO’s. Neither Field’s
explanation for making the call to Dingman, nor Dingman’s explanation for conducting her 5
investigation is credible. The Union issued its strike notice to the bargaining committee
members on January 22 (GC Exh. 3). Thus, by the time he contacted Dingman on February 17,
Fields had been aware for several weeks that the Union had issued a strike notice. Moreover, at
some time during contract negotiations, Dingman requested and Respondent provided a
contingency plan in case of a strike (Tr. 510). Thus, there was no need for Dingman to 10
investigate whether a strike was imminent for contingency planning purposes.
I find it telling that Fields acted only after Blake contacted the Army Corps of Engineers
and, contrary to her repeated assertions, Dingman’s focus was on whom, and in what manner, the
strike notice was delivered, not on the likelihood of a strike. According to her own report, 15
Dingman never asked anyone about the likelihood of a strike and when testifying, was unable to
explain why (Tr. 450–460). Moreover, Dingman’s antipathy toward the Union and its intent to
strike, as well as toward Blake directly contacting the client is uncontroverted on the record. I
found Fields lacked credibility based on both his inconsistent testimony and demeanor when
testifying.12 His testimony that he lacked any knowledge of why Dingman intended to conduct 20
interviews strained credulity (Tr. 516). It seems unlikely Fields would have no understanding of
why Dingman would be interviewing employees whom he supervised after having contacted her
only days before. In this context, I find the evidence establishes Dingman's purpose and focus
was Blake’s discussing PSO grievances and the strike notice with the Colonel.
25
Moreover, the record contains direct evidence of Dingman’s antiunion animus and
Respondent’s knowledge of that animus. Dingman told each of the PSO’s a strike would result
in their termination and inability to ever work another Government contract. She further
admonished them about going directly to the building tenant with workplace concerns. I find
these statements establish Dingman’s negative attitude toward the PSO’s protected activity. 13 30
Moreover, each of these statements was made in the presence of Edmiston. Thus, I find
Respondent was aware of Dingman’s antiunion motivation.
I also find sufficient circumstantial evidence to establish Respondent itself acted with
discriminatory motive. Upon reviewing the report submitted by Dingman, Respondent made the 35
decision to discharge Blake, Baker and Holland without conducting any investigation. The Board
has held evidence that an employer fails to adequately investigate alleged misconduct or allow an
employee the opportunity to explain his or her actions supports an inference of animus and
discriminatory motivation. Midnight Rose Hotel & Casino, Inc., 343 NLRB 1003, 1005 (2004);
W. W. Grainger, Inc. v. NLRB, 582 F.2d 1118, 1121 (7th Cir. 1978); Relco Locomotives, Inc., 358 40

12 Fields was evasive when testifying, often stating he did not understand or needed to have repeated, simple,
straightforward questions. He had lengthy pauses between question and answer and contradicted prior
sworn testimony (Tr. 499; 501).
13 I have not found that any of these statements constitute an 8(a)(1) violation, nor is such a finding necessary.
The Board has long held such statements, although not rising to the level of an 8(a)(1) violation, may still
be evidence of animus. NACCO Materials Handling Group, 331 NLRB 1245 (2000); General Battery
Corp., 241 NLRB 1166, 1169 (1979).
JD(ATL)–05–14
19
NLRB No. 37, slip op. at 14 (2012); American Crane Corp., 326 NLRB 1401, 1417 (1998).
Dingman’s report, which specifically reference an understanding by the PSO’s that they had not
engaged in any direct rule violation, would have lead a reasonable employer to question and
investigate whether Blake and Baker had engaged in the misconduct alleged. Moreover, such an
investigation would have revealed that bypassing screening by off duty PSO’s was a widespread 5
practice, not a clear and well-enforced rule violation.
Several current and former PSO’s testified it was common practice for PSO’s to use their
credentials to enter these facilities without being screened (Tr. 587–588). Moreover, this was
done in the presence of Respondent’s managers. I find both Field’s and Edmiston’s denials of 10
having seen such conduct lack credibility. 14 I also find, based on this evidence, Respondent did
not treat similar conduct in the same manner. I am not persuaded by Respondent’s argument that
because only sergeants witnessed this conduct and failed to act supports a finding that
management was unaware of these infractions. The record establishes sergeants had the
authority to impose discipline for rule infractions. I find that this practice was witnessed by 15
those with the authority to impose discipline who tolerated the conduct.
Nor could any of Respondent’s witnesses explain why, in light of the purported severity
of the misconduct, were no actions taken for over 3 months. Edmiston was present for all of the
interviews and was aware of the alleged misconduct in February. However, she did nothing. 20
Edmiston had the authority to take disciplinary action. She testified she did nothing because she
did not want to interfere and wanted to remain neutral (Tr. 557–558). I do not find this a
reasonable explanation for her failure to act, if the purported misconduct was as serious as
Respondent alleged. Temp-Rite Air Conditioning Corp., 322 NLRB 676 (1996) (a delay in
taking action after the misconduct may rebut an employer’s contention that it would have taken 25
the disciplinary action in the absence of protected activity).
Respondent had a progressive disciplinary policy under which it could have taken
disciplinary action against Blake, Baker, and Holland. Just as it chose not to investigate the
alleged misconduct, Respondent chose not to follow this policy, either at the time Edmiston 30
became of aware of the alleged misconduct or at the time it received Dingman’s report. This
failure to follow its own progressive disciplinary policy also raises an inference of discriminatory
motive. The three PSO’s had no prior disciplinary history and had not committed any of the
offenses enumerated in Respondent’s progressive disciplinary policy that might result in
discharge for a first offense. Thus, I find that applying Respondent’s own policy would likely 35
not have led to a decision to discharge, but for a discriminatory motive.
Finally, I find Respondent’s contention it was required to discharge Blake, Baker, and
Holland under the terms of its contract with FPS to be false and Respondent’s statements in its
termination notices to that effect to be misrepresentations. The Statement of Work does provide 40
the COTR and CO authority to request the removal of a PSO from work on a contract. FPS has a

14 I have previously found Fields lacked credibility. I similarly find Edmiston was not a credible witness.
Edmiston, like Fields, was evasive and her testimony was marked by pregnant pauses. Indeed, she failed to
answer several questions, simply staring blankly at the questioner (Tr. 542, 547, 544; 560; 562). Edmiston
appeared confused and unable to answer simple questions and went as far as to deny knowing that she had
signed the suspension notices for Blake, Baker, and Holland (Tr. 559).
JD(ATL)–05–14
20
directive specifying the procedure under which PSO’s are to be removed, if done so at the
direction of FPS. That procedure was not followed here because, as Dingman testified, FPS did
not request the removal of the PSO’s (Tr. 446). Hagan admitted Respondent could have
appealed Dingman’s recommendation to the CO. Hagan’s testimony that Respondent was
without any option but to discharge Blake, Baker, and Holland is not credible. Rather, I find 5
Respondent made a decision absent such directive or request.
Based on the foregoing analysis, I find the General Counsel has met his burden to
establish Respondent discharged Blake, Baker, and Holland because each actively engaged in
protected and union activity.10
5. Respondent’s burden
Respondent contends, even if discriminatory animus played a part in the discharge
decisions, it would have taken the action that it did absent the discriminatory motive. As 15
previously discussed, Respondent contends it was obligated to follow the recommendation of the
COTR. In addition, Respondent contends Dingman’s report provided an adequate basis upon
which to base its discharge decision. In support of that contention, Respondent presented
evidence it discharged PSO’s for similar security breaches and lack of candor. I do not find
these instances to be sufficiently similar to meet Respondent’s burden. 20
Hagan testified that in February of 2013, PSO Dozier was discharged for improper use of
his access card (Tr. 326). The record contains no details and no documentation to corroborate
Hagan’s testimony. In order to establish similarly situated employees were treated the same,
Respondent would need to present more than uncorroborated, vague recollections. Moreover, 25
this discharge took place after the discharges in the instant matter. Such post-hoc actions are
insufficient to meet Respondent’s burden.
The second purportedly similar discharge involving PSO Williams in Chicago is also not
sufficient to meet Respondent’s burden. A significant distinction between this and the instant 30
case is that, according to the inspection form, Williams had been informed on repeated occasions
about specific rules addressing contractor employee identification (R. Exh. 6). Respondent did
not include the referenced attachment containing this directive to the inspection report. Such
failure to produce documents within its control leads to the conclusion that this evidence would
be unfavorable to Respondent. See International Automated Machines, 285 NLRB 1122, 1123 35
(1987). I have previously found the rule at issue in this case was not clearly communicated or
consistently enforced. Thus, I find Respondent’s example too distinct from the instant case to
meet its burden to show it treated similar conduct the same.
I further find insufficient evidence to conclude the purported security breach at issue in 40
the instant case to be the clear rule violation warranting discharge Respondent purports it to be.
Neither the SGIM nor the post orders for the ACE facility contain a rule specifically prohibiting
an off duty PSO from entering a building in which he works using his credentials to bypass
screening. The conduct rule in the SGIM addressing use of credentials is a broad admonition
against “unethical or improper use of official authority, credentials or equipment.” (Jt. Exh. 2, p. 45
13). I do not find it the clear admonition against the specific conduct at issue. Moreover, it is
JD(ATL)–05–14
21
not further clarified by reference to section 5.5 as Respondent contends. I find Respondent’s
reading of section 5.5 to apply to this situation to be tortured. Moreover, Respondent’s evidence
of how PSO’s are trained was confusing. I did not find Respondent’s witnesses with knowledge
of how PSO’s are trained to be credible on this issue. Thus, I find Respondent has failed to meet
its burden to establish it would have made the discharge decision based on the alleged rule 5
violation, absent a discriminatory motive.
Finally, Respondent presented no evidence it has taken any disciplinary action against a
PSO for lack of candor alone.
10
I have previously found Respondent was neither obligated nor without option but to
follow FPS’s request. Based on the analysis above, I further find Respondent has not met its
burden to establish it has treated similar misconduct in the same manner. Thus, I find
Respondent failed to establish it would have taken the actions that it did absent a discriminatory
motive.15
Accordingly, I find Respondent violated Section 8(a)(3) and (1) of the Act when it
discharged Blake, Baker, and Holland for engaging in concerted protected and union activity.
CONCLUSIONS OF LAW20
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.25
3. Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Arthur
Blake.
4. Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Joel 30
Baker.
5. Respondent violated Section 8(a)(3) and (1) of the Act when it discharged John
Holland.
35
REMEDY
Having found 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
polices of the Act. 40
The Respondent having discriminatorily discharged Arthur Blake, Joel Baker, and John
Holland must offer each reinstatement and make each whole for any losses, earnings or other
benefits incurred as a result of Respondent’s discharge of them. These amounts are to be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the 45
JD(ATL)–05–14
22
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
In accordance with Latino Express, Inc., 359 NLRB No. 44 (2012), Respondent shall
compensate Arthur Blake, Joel Baker and John Holland for the adverse tax consequences, if any, 5
of receiving lump-sum backpay awards, and file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters for each.
On these findings and conclusions of law and on the entire record, I issue with following
recommended1510
ORDER
Respondent, Paragon Systems, Inc., Savannah, Georgia, its officers, agents, successors,
and assigns shall15
1. Cease and desist from
(a) Discharging or otherwise disciplining employees because they engage in
union activity or other activity protected by Section 7 of the Act.20
(b) In any like or related manner interfering, restraining, or coercing
employees in the exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the 25
Act:
(a) Within 14 days from the date of the board’s Order, offer Arthur Blake
reinstatement to his former position or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges previously 30
enjoyed; and remove from its files any and all references to the unlawful suspension and
termination and within 3 days thereafter notify Arthur Blake in writing that this has been done
and that the discipline will not be used against him in any way.
(b) Make Arthur Blake whole for any loss of earnings and other benefits 35
suffered as a result of his unlawful discharge, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the board’s Order, offer Joel Baker
reinstatement to his former position or, if that position no longer exists, to a substantially 40
equivalent position, without prejudice to his seniority or any other rights or privileges previously
enjoyed; and remove from its files any and all references to the unlawful suspension and

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–05–14
23
termination and within 3 days thereafter notify Joel Baker in writing that this has been done and
that the discipline will not be used against him in any way.
(d) Make Joel Baker whole for any loss of earnings and other benefits
suffered as a result of his unlawful discharge, in the manner set forth in the remedy section of the 5
decision.
(e) Within 14 days from the date of the board’s Order, offer John Holland
reinstatement to his former position or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges previously 10
enjoyed; and remove from its files any and all references to the unlawful suspension and
termination and within 3 days thereafter notify John Holland in writing that this has been done
and that the discipline will not be used against him in any way.
(f) Make John Holland whole for any loss of earnings and other benefits 15
suffered as a result of his unlawful discharge, in the manner set forth in the remedy section of the
decision.
(g) 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 designated by 20
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, necessary to analyze the amount of backpay due under the terms of this
Order.
25
(h) Within 14 days after service by the Region, post at its facility in Savannah,
Georgia copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 10, after being 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 30
posted. In addition to physical posting of paper notices, the 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.
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 35
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since July
12, 2012.
40

16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(ATL)–05–14
24
(i) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
5
Dated, Washington, DC February 7, 2014
10
__________________________________
Heather A. Joys
Administrative Law Judge
JD(ATL)–05–14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting United
Security Police Officers of America or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Arthur Blake 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 Arthur Blake whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, offer Joel Baker 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 Joel Baker whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, plus interest compounded daily
WE WILL, within 14 days from the date of this Order, offer John Holland 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 John Holland whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, plus interest compounded daily.
JD(ATL)–05–14
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate quarters.
WE WILL compensate Arthur Blake, Joel Baker, and John Holland for the adverse tax
consequences, if any of receiving on or more lump-sum backpay awards covering periods longer
than 1 year.
PARAGON SYSTEMS, INC.
(Employer)
Dated: __________________ By: _______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
233 Peachtree Street N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (205) 933-3013.