Superior Protection, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2003

339 N.L.R.B. 954 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
Superior Protection, Inc. and United Government
Security Officers of America, for and on behalf
of Local 229.1 Cases 16–CA–21399, 16–CA–
21495, and 16–RC–10361
July 31, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On August 28, 2002, Administrative Law Judge
Robert A. Pulcini issued the attached decision and on
September 25, 2002, an erratum to that decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief. The Respon-
dent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs,2 affirms the judge’s
rulings, findings,3 and conclusions,4 and adopts the rec-
ommended Order as modified.5

1 In a limited exception, the Charging Party moves the Board to
amend its name in the caption. We grant the exception and amend the
name as requested.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties. We also deny the Respondent’s motion
to reopen the case and receive further evidence.
Member Acosta joins his colleagues in denying the Repsondent’s
exception to the judge’s ruling rejecting its attempt to introduce into
evidence the entire transcript, correspondence, and pleadings from the
preelection hearing in the representation case, rather than just the por-
tion of the transcript containing the testimony of discriminatee Kelvin
Trotter, whose testimony in the present proceeding the Respondent
seeks to discredit. In the absence of newly discovered or previously
unavailable evidence or special circumstances, a respondent is not
entitled to relitigate issues that were or could have been litigated in a
prior representation proceeding. Transportation Maintenance Services,
331 NLRB 1050 (2000). Member Acosta finds that the Respondent has
failed to explain how the admission of the remaining transcript is ap-
propriate or necessary because, as the judge stated at fn. 2 of his deci-
sion, the judge admitted Trotter’s previous testimony into evidence, and
the remaining key witnesses to matters in issue here—specifically
Trotter’s alleged status as a discriminatee discharged in violation of
Sec. 8(a)(3)—appeared and testified subject to cross examination in the
present proceeding.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Some of the Respondent’s exceptions imply that the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
4 In adopting the judge’s findings, we find it unnecessary to draw an
adverse inference from the Respondent’s failure to call employees King
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Superior
Protection, Inc., Houston, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(b) and
reletter the subsequent paragraph accordingly.
“(b) Disciplining, discharging, or otherwise discrimi-
nating against any employee for supporting United Gov-
ernment Security Officers of America and its Local #229
or any other union.
“(c) Disciplining, discharging, or otherwise discrimi-
nating against employees because they have given testi-
mony under the Act.”
2. Substitute the following for paragraph 2(b).
“(b) Make Kelvin Trotter whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), less any interim
earnings, plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).”

and Murphy. Even absent the adverse inference, the judge’s findings
and conclusions are well-founded in the record.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) when it imposed a 3-day suspension and 90-day proba-
tionary period on Trotter, we reject the Respondent’s characterization
that Trotter was “loud, belligerent, insubordinate, disrespectful, and
profane” when Contract Administrator Jose Castillo confronted him.
Castillo used this characterization to describe Trotter’s actions, but the
judge did not credit this testimony. We agree with the judge that the
asserted basis for the Respondent’s decision to issue the initial 1-day
suspension to Trotter was pretextual and that the Respondent could not
in the circumstances of this case rely on conduct it provoked as a basis
for disciplining Trotter.
We adopt the judge’s conclusion that the Respondent’s stated rea-
son for Trotter’s discharge, which was that he “lied” at the Board hear-
ing, was also pretextual. In doing so, however, we do not rely upon the
judge’s statement that the Board “construes testimony before it ‘liber-
ally.’” (Emphasis added.) Rather, we note that the Board interprets
Sec. 8(a)(4), and not witness testimony, liberally: “[I]t is clear that
Section 8(a)(4) is to be construed liberally . . . and that it protects even
false testimony so long as such testimony was not willingly and know-
ingly false and uttered with intent to deceive.” Glover Bottled Gas Co.,
275 NLRB 658, 673 (1985) (emphasis added).
5 We modify the recommended Order to include a remedial provi-
sion for the Respondent’s violation of Sec. 8(a)(4). Also, the judge
included in his recommended remedy a provision requiring the Re-
spondent to reimburse Kelvin Trotter for any extra Federal or State
income tax that would result from the lump sum payment of any back-
pay award. Granting this request would involve a change in Board law.
See, e.g., Hendrickson Bros., 272 NLRB 438, 440 (1985), enfd. 762
F.2d 990 (2d Cir. 1985). In light of this, we believe that the appropri-
ateness of this proposed remedy should be resolved after a full briefing
by the affected parties. See Kloepfers Floor Covering, Inc., 330 NLRB
811 fn. 1 (2000). Because there has been no such briefing in this case,
we decline to include this additional relief in the Order here.
339 NLRB No. 118
SUPERIOR PROTECTION, INC. 955
3. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the Regional Director for
Region 16 shall, within 14 days from the date of this Or-
der, open and count the ballot of Kelvin Trotter, and shall
prepare and serve on the parties a revised tally of ballots,
and issue the appropriate certification.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT send letters to any of you that directly or
indirectly threaten discipline or discharge for engaging in
activities on behalf of United Government Security Offi-
cers of America and its Local 229, or any other Union.
WE WILL NOT discipline, discharge, or otherwise dis-
criminate against any of you for supporting United Gov-
ernment Security Officers of America and its Local 229
or any other union.
WE WILL NOT discipline, discharge, or otherwise dis-
criminate against any of you for giving testimony in a
proceeding before the Board.
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 the Board’s
Order, offer Kelvin Trotter full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges enjoyed.
WE WILL make Kelvin Trotter whole for any loss of
earnings and other benefits resulting from his discipline
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days of the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and discharge of Kelvin Trotter, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the discipline and discharge
will not be used against him in any way.

SUPERIOR PROTECTION, INC.

Linda M. Reeder, Esq., for the General Counsel.
Michael Jay Kuper, Esq. (Michael Jay Kuper, a Professional
Corporation), of Houston, Texas, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. PULCINI, Administrative Law Judge. This case
was tried in Houston, Texas, on March 11 and 12, 2002. The
charge was filed on September 10, 2001,1 against Superior
Protection, Inc. (the Respondent) by the United Government
Security Officers of America, Local 29, AFL–CIO (the Union).
A complaint issued on November 16, 2001. The Union filed a
petition seeking an election in a unit of the Respondent’s em-
ployees on August 20. The election, conducted between Octo-
ber 15 and 29, resulted in one determinative challenged ballot.
The issues relating to this election and the outstanding com-
plaint were consolidated for hearing on November 29. The
complaint was amended, as well, on November 29. The
amended complaints allege that the Respondent discriminato-
rily disciplined and then discharged employee Kelvin Trotter
(Trotter), thereby violating Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (the Act). The determinative
ballot arising out of the election is the ballot of Trotter.
Issues
(1) Whether the Respondent discriminated against Trotter by
disciplining him and then firing him because of his activities on
behalf of the Union.
(2) Whether the Respondent discriminated against Trotter by
disciplining and then firing him because he participated in pro-
ceedings before the National Labor Relations Board.
(3) Whether the Respondent’s challenge to the ballot of Trot-
ter is appropriate.2

1 All dates are in 2001 unless otherwise indicated.
2 The Respondent attempted to litigate representation case issues
during the hearing. The General Counsel objected to this. I ruled in
favor of the General Counsel and forbade the introduction of this evi-
dence. The Respondent offered documentary evidence on these issues,
which I rejected. These exhibits were placed in a rejected exhibits file.
However, I rejected further attempted proffers without allowing the
placing of related written material into the rejected exhibits file. In its
brief, the Respondent renewed its request to place this material into the
rejected exhibits file. The General Counsel moves to strike the portions
of the brief relating to these exhibits and opposes this. I agree with the
General Counsel that the underlying subject matter of these exhibits is
beyond this proceeding. The Respondent seeks to relitigate issues
belonging to the representation case, while offering no convincing
grounds to do so. The thrust of its argument centers on its dealings with
the General Counsel and Region 7, which it found unsatisfactory.
However, the Respondent simply did not establish the materiality and
relevancy of these “issues” to the status of Trotter as an alleged dis-
criminatee. Thus, my barring inquiry into these issues at hearing is
appropriate in the interests of maintaining a taut, precise record. How-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956

On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates from its facility in
Houston, Texas, where it annually provides security services to
federal agencies. The Respondent annually provides these
services valued more than $50,000 to customers located outside
of the State of Texas. The Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates a multistate security service pro-
viding guards for Federal buildings. Its primary source of con-
tractual business is the General Services Administration (GSA).
GSA defines the parameters for contract performance and
awards contracts on a bid basis. The principal officer of the
Respondent is its president, Jack Heard. Heard presides over
his hundreds of guards with various supervisory help. Unions
represent employees in some locations. The situs of the issues
in this case is Houston, Texas.
Trotter worked for the Respondent’s predecessor company,
Southwest Security, for sometime. The Respondent hired Trot-
ter when it assumed the contract of this company in November
1999. Trotter’s work history with the Respondent, before the
events involved here, is essentially unremarkable. He received
two minor instances of discipline before September 2001 and at
least one letter of praise from a Federal agency he guarded. It
is undisputed that the Respondent viewed Trotter as a satisfac-
tory employee before September 2001 when the alleged dis-
criminatory events happened.
Sometime in April or May, Trotter contacted the Union
through its representative, James Carney, about unionizing the
Respondent. Trotter used a pseudonym, Jonathan Wills, in this
contact. He testified he was concerned about losing his job, a
concern that ultimately proved to be prescient. In the ensuing
months before August 20,4 Trotter got cards from Carney, pass-
ing them out and retrieving them surreptitiously. He appears to

ever, I will allow the Respondent to augment its rejected exhibits by
having the attachments to its brief referred to as X-1 through X-12
included. In so doing, I seek only to preserve the due-process rights of
the Respondent. The substance of this rejected evidence, I continue to
view, as completely irrelevant to the issues. Similarly, I deny the Gen-
eral Counsel’s motion to strike portions of the Respondent’s brief deal-
ing with these matters. The subject matter is excluded evidence, and I
will not consider any of it.
3 The General Counsel’s unopposed motion to correct the record,
dated April 17, 2002, is granted and received in evidence as GC Exh.
13. The Respondent’s unopposed motion to correct the transcript dated
April 17, 2002, is similarly granted and received into evidence as R.
Exh. 16.
4 The Union filed the petition for an election on this date.
have done this quite successfully. The evidence is clear that the
Respondent did not become aware of Trotter’s involvement
until the very day of the representation hearing at the NLRB
offices.
The NLRB scheduled a representation hearing for September
4. Trotter received a subpoena to appear. He failed to tell the
Respondent about this subpoena.5 Instead, Trotter asked his
superior, Lieutenant Albert Johnson, for time off on the date of
the hearing for “personal business.”6 Johnson did not ask Trot-
ter what this business was. He told Trotter he would speak to
Captain Jose Castillo about it. Trotter had taken time off on
five or six previous occasions in exactly this way. Johnson did
speak to Castillo and reported to Trotter the next day that he
could have his time. Johnson told Trotter that he might have to
cover a shift at the Military Enlistment Processing Station
(MEPS) if someone from there took his shift. In fact, no one
told Trotter anything about work schedules for the day of the
hearing, until the day of the hearing.
Trotter attended, as did Union Attorney Nelson, Heard, and
Michael Jay Kuper, the Respondent’s attorney. Trotter asked
early on how long the hearing would take and told those present
that he had to leave at 12 or 12:30 p.m. so he could change into
his uniform for possible work that afternoon at MEPS. No one
told Trotter anything to the contrary to that point. Trotter then
testified for the Union at length. Kuper cross-examined him
and asked Trotter where he had first worked and how he had
come to be in his present position in Houston. Trotter testified
he had first worked in Galveston for the Respondent for a time
and then asked for transfer to Houston.7
As Trotter left the hearing, Heard said to him, “Don’t be
late.” Trotter called Lieutenant Johnson and asked about work
for that day. Johnson told Trotter to relieve him at the Social
Security building because he himself had some court date for 4
p.m. that day. Trotter told Johnson that he would report about
12:30 p.m. after he changed into his uniform. Johnson testified
5 Trotter never disclosed his subpoena to Respondent. Thus, it is a
red herring. His failure to disclose it removed him from its inherent
protections.
6 There was some dispute about Johnson’s supervisory status at hear-
ing. It is not an issue affecting this case. The Respondent sought to
relitigate Johnson’s status as a statutory supervisor. Johnson had un-
disputed authority to arrange employee work schedules as he did in
Trotter’s case. This is the only relevant fact. Whether he is a statutory
supervisor is immaterial to the issues in this case.
7 The exchange between Kuper and Trotter was:
Q. Do you spend part of your time in Houston and part of
your time in Galveston?
A. No sir. I work in Houston now.
Q. And what was the reason for the change?
A. A position came available and they gave it to me.
Q. Did you apply for it?
A. No sir. There’s no formal applies.
Q. I’m sorry.
A. No sir.
Q. I see. But you didn’t apply to Houston, they told you that
you had to come to Houston, is that your testimony?
A. It’s not a have to, they offered me a position to come to
Houston and I took it.
[See GC Exh. 8., Q referring to question and A to its answer.]

SUPERIOR PROTECTION, INC. 957
that Trotter’s starting time was left open. Trotter did not give
him a precise starting time.8
While Trotter was arranging his reporting time, Heard called
his operations manager, Mike Lane. He told Lane to report to
him exactly what time Trotter arrived at work. Lane is the
Respondent’s executive functionary and manages the approxi-
mately 700 guards of the Respondent’s multistate operation.
This personal interest in one employee was unusual for Heard.
Heard’s inquiry flowed down the supervisory hierarchy from
Lane to Captain Jose Castillo to Lieutenant Johnson. Johnson
told Castillo that Trotter had still not reported in. This informa-
tion made its way back to Heard. Heard told Castillo to issue
Trotter a 1-day suspension when he came to work.9 Trotter
came to work at the Social Security building between 1:30 and
1:45 p.m. When he arrived, Johnson told him to go to the FBI
building to see Castillo. Trotter arrived at the FBI building and
approached the security desk where fellow officer Murphy was
on duty. He told Murphy he was there to see Castillo. Murphy
went to Castillo’s nearby office and told Castillo that Trotter
was there.
Castillo kept Trotter waiting for about 30 minutes before
coming into the area where he waited. Castillo, without expla-
nation, ordered Trotter to disarm himself. Trotter complied
without questioning the order. He took his gun to his car and
stowed it. In his previous 10 to 15 visits to the FBI building,
Trotter was never asked to remove or surrender his weapon.
Trotter came back into the building but Castillo had returned to
his office. Another 15 minutes elapsed. Trotter asked another
officer named King if he could knock on Castillo’s door. King
told him to go ahead and Trotter knocked.10 Castillo told Trot-
ter to continue waiting. Ten minutes later, Castillo emerged
from his office and ordered Trotter to go through the metal
detector.11 Trotter balked at the order and asked to be wanded
instead. Castillo refused this request and ordered Trotter to go
outside the building. Both men went outside. Castillo then
read from a paper that Trotter testified was the Respondent’s
disciplinary form. Castillo read that Trotter had failed to give
his supervisor proper notification that he was taking off from
work and reported late. Castillo asked Trotter to sign this form
but Trotter refused. Trotter told Castillo that he had received
permission to take off that day from Johnson to no avail. The
exchange between Castillo and Trotter was heated.
As Castillo went back into the building, Trotter followed
him, asking about pay for the day. He also asked if he could
get a copy of the disciplinary form. Castillo refused to give

8 I found Johnson to be a reasonably credible witness. He answered
all questions without hesitation although he seemed somewhat confused
about the reasons for Trotter’s discharge.
9 It is unclear how long this chain-of-command dialogue took.
However, the inference from the facts is that it took place sometime
between the close of the Board hearing at about noon time and 1:30
p.m.
10 It is unclear whether the office door was closed. Castillo testified
that he shared the office with another person unconnected to the Re-
spondent. The office was physically on the public side of the secured
area.
11 Proceeding through the metal detector was an unusual act for a
uniformed officer on duty to engage in.
Trotter a copy because, he said, Trotter refused to sign it when
he read it to him. Castillo ignored Trotter’s inquiry about pay.
Instead, he ordered Trotter to leave. Trotter did not respond
quickly enough for Castillo, who ordered officer King to call
the FBI duty officer. The FBI officer came and ordered Trotter
to leave on Castillo’s assertion that Trotter was causing a scene.
That evening, Trotter received a call at home from Castillo,
telling him to report to the main office the next morning. Lane
and Castillo awaited him the next day.
Upon his arrival, Lane said he was giving him a 3-day sus-
pension and placing him on 90 days’ probation for the events at
the FBI building.12 Trotter unsuccessfully tried to defend him-
self.
The Respondent fired Trotter on September 21, a week after
the Decision and Direction of Election issued. Lane sent Casti-
llo to Trotter’s duty station at about 4 p.m. that day. Castillo
asked Trotter for his weapon and ammo. As he collected these,
he reproved Trotter for having a dirty weapon and having too
many bullets.13 Trotter asked him about the reason for his dis-
charge. Castillo told him to call Lane and find out the reasons.
On September 24, Trotter called Lane. Lane told him that the
Respondent fired him for lying at the Board hearing. The Re-
spondent fired only two other employees in the 3 previous
years.
The Respondent issued a letter to employees on October 11,
just before the election.14 In its relevant portion, this letter
reads:

Recently, a security officer working on a Houston contract
was terminated by the company. The officer and the union
falsely claim that this employee was terminated due to his in-
volvement with the union. In actuality, the employees was
terminated because he lied under oath in a Labor Board hear-
ing trying to help the union, which is against the law. This
particular officer was a good employee; and unfortunately he
was apparently influenced by disreputable individuals result-
ing in his termination.

The Respondent acknowledged through its president, Heard,
that the “disreputable individual” referred to in this letter is
Union Representative Carney.
III. DISCUSSION AND ANALYSIS
The Respondent raises a plethora of defenses of the issues in
this matter. Many of these go to the merits of the representa-
tion case and rulings made by the Regional Director. None of
this, however, is before me or germane to the questions raised
by the Respondent’s conduct towards Trotter. Possible reper-
12 Lane told Trotter he had engaged in “boisterous and disruptive ac-
tivity in the workplace.” Trotter, he said, had engaged in “insubordina-
tion and disrespectful conduct.”
13 The question of having six extra bullets, the Respondent alleged,
violates the GSA contract guard manual regulations. A review of this
document did not reveal this requirement. In any case, such an infrac-
tion hardly rises to the level of a dischargeable offense, especially given
the entire context of the events in this case.
14 The election in the representation case was held on October 30, re-
sulting in a tie vote. The single challenged ballot of Trotter is determi-
native of the results.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
cussions to the representation case arise only in the context of
the Trotter’s challenged ballot and its resolution.
The decisional principles in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), and its many prog-
eny set out the schematic for analysis of cases of alleged dis-
crimination. First, the General Counsel must first make out a
showing supportive of an inference that protected activity is the
motivating factor in the discharge or discipline involved. Once
this happens, the burden shifts to the employer to show that
what occurred to the employee would have happened, in any
event, irrespective of the employee’s protected concerted activ-
ity. A prima facie case exists if the General Counsel estab-
lishes union activity, employer knowledge of that activity, ani-
mus and adverse action against the person or persons involved
that has the effect of discouraging union activity. See Farmer
Bros. Co., 303 NLRB 638, 649 (1991).
If an employer’s stated motives for its actions are found to be
false, an inference may be found in the circumstances or facts
of the case that the true motive is one the employer wishes to
conceal. Such an inference exists in viewing this record as a
whole. Fluor Daniel, Inc., 304 NLRB 970 (1991). Moreover,
the Respondent never sufficiently rebuts the case General
Counsel with a preponderance of evidence leaving the negative
inferences drawn extant; see Merrilat Industries, 307 NLRB
1301, 1303 (1992).
A. The 1-Day Suspension
Of the witnesses testifying for the Respondent, Jack Heard’s
testimony is pivotal.15 Heard turned his eye towards Trotter,
literally within moments of his testimony, warning him not to
be late.16 As Trotter left, Heard began the process of inquiry
from his subordinates about him. This culminated in his order-
ing Trotter’s discipline before he even arrived at his duty sta-
tion. Lane testified that Heard’s involvement in Trotter’s case
was merely an expression of a concerned chief executive offi-
cer with the details of business. I reject this explanation as
patently incredible.17 Trotter was 1 of nearly 700 guards. In
any normal business context, Trotter’s being late for work

15 I scrupulously observed Heard’s testimony and weighed his ac-
count of events against the other witnesses. His demeanor, in trial, had
an exaggerated authoritarian quality to it. He visibly bridled with the
questioning of his motives or decisions by others. The evidence re-
flects that Heard has deep roots in law enforcement, rising to positions
of great authority and power before starting his successful business.
The Respondent conducts its business in a manner largely reflective of
his personality. Thus, it, too, is very authoritarian in how it operates. It
is clear from Heard’s demeanor and testimony that he found Trotter’s
hearing appearance, on behalf of a union whose agents he called “dis-
reputable,” an act of consummate betrayal. His testimony of his rea-
sons for acting against Trotter seemed pure invention. He conveyed an
impression of expressing a contrived rationale to mask other motiva-
tion.
16 Heard’s warning to Trotter comes without a prelude. Heard did
not ask a single question about Trotter’s schedule or what arrangements
he had made to be present at the hearing.
17 Lane’s demeanor, while testifying, was the loyal subordinate tai-
loring his responses to serve the needs of his superior. I place little
reliance on anything he said.
would never have risen to the level of Heard’s interest and in-
volvement.18 Trotter’s testimony changed that context.
The General Counsel successfully makes out a prima facie
case in regards to the first instance of Trotter’s discipline that
the Respondent fails to rebut. Trotter testified for the Union in
a Board hearing before the Respondent’s chief executive officer
(CEO). The Respondent disciplined him at the orders of that
same CEO within hours of his testimony. This was unusual in
the context of the previously meted-out discipline. The Re-
spondent does not adequately answer the General Counsel’s
case.19 Thus, I infer that this first instance of discipline was
discriminatorily motivated. See Adco Electric, Inc., 307 NLRB
1113 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic
Data Systems Corp., 305 NLRB 219 (1991). In drawing this
inference, the timing of the event and the way the Respondent
chose to enforce the alleged misconduct were compelling fac-
tors.
B. The 3-Day Suspension and 90-Day Probationary Period
The circumstance of this event brings into conflict Castillo’s
version of events and Trotter’s.20 In the undisputed details of
this encounter, there are troubling facts tilting the resolution of
the issue in favor of the General Counsel’s case. First, Johnson
sent Trotter, at once, to see Castillo. The Respondent never
explained the imperative that demanded this special calling out
for punishment or the necessity to implement it immediately.
When Trotter arrived at the FBI building, he underwent a series
of seemingly arbitrary orders, first to disarm and then to pass
through the metal detector.21 Neither of these things had ever
18 The Respondent states that Captain Castillo monitored Trotter’s
immediate posthearing behavior because Lieutenant Johnson was sup-
posed to be absent himself that afternoon. None of the complicated
scenario the Respondent presents of supervisory concern rings true.
The Respondent, in its brief, argues that Heard’s authority was in issue
since he told Trotter not to be late, thus precipitating the flurry of phone
calls back and forth to check on Trotter’s progress to work. I find this
an absurd premise. Trotter had worked out his time for report with his
immediate superior. He called Johnson after the hearing, telling him
when he intended to report. He did so within the parameters of that
call. The Respondent brewed a tempest in a teapot over Trotter’s re-
porting late to work. The only reason that explains the unusual behav-
ior by Heard is the desire to punish Trotter at once for his activity at the
hearing that day.
19 There was no evidence introduced to demonstrate the punishment
given Trotter was consistent with the Respondent’s past practice.
There was no evidence to show that CEO Heard ever directly involved
himself with the initial discipline of any employee, least of all for the
comparatively trivial incident of being late for an open-ended tour of
duty.
20 Castillo, like Lane, seemed the loyal subordinate seeking his supe-
rior’s approval. He delivered his testimony with rote exactitude; giving
answers to questions in a way he felt beneficial to Respondent. I place
little reliance in them. Trotter, on the other hand, nervously stumbled
to explain events. He appeared puzzled as to what had happened to
him, almost hurt at the treatment afforded him by Respondent. His
account was ingenuous in its presentation and thus very credible.
Against the conflicting versions of events, I credit Trotter over Castillo.
21 Castillo had a number of options available to him that did not re-
quire Trotter to disarm himself or submit to being effectively searched
by the metal detector. One of these was to see Trotter inside his office
outside of the security area. He chose not to do this. Eventually, at

SUPERIOR PROTECTION, INC. 959
been necessary before. Moreover, Trotter was kept waiting for
a long time by Castillo. Castillo never explained why he
deemed it necessary to do so. Secondly, I do not accept his
explanation of these events. Rather, I find that the circum-
stance of this delivery of discipline was intentionally designed
to victimize Trotter.22 Disarming Trotter and then requiring
him, as a uniformed officer, to pass through the metal detector
in front of his fellow officers was intended to publicly humili-
ate him and mark him.23
Trotter doubtlessly acted up when Castillo began to read his
discipline to him.24 However, by that time, Castillo humiliated
and provoked Trotter in his treatment of him. His behavior,
described by the Respondent as “boisterous” and “disruptive,”
were the result of the Respondent’s actions.25 I agree with the
General Counsel. A respondent may not take advantage of a
situation it creates to discriminate further against an employee.
Teksid Aluminum Foundry, 311 NLRB 711 (1993).
C. Trotter’s Discharge
The Respondent says it fired Trotter on September 21 for the
events of September 4, i.e., being late for work, acting out
when disciplined, and, most importantly, for lying at the Board
hearing. The text of the Respondents case is that Heard, con-
cerned about the content of Trotter’s Board testimony, ordered
an “investigation.”26 GSA work rules, the Respondent states,
allows for disciplinary action towards an employee for “lying to
a government official or your supervisor.” In its brief, the Re-
spondent catalogues 19 separate incidents where it says Trotter
“lied” but centers its discharge case on Trotter’s answers to the
Respondent’s questions about how he came to work in Hous-
ton.27 The Respondent also accuses Trotter of lying in the in-
stant case.28 In presenting its defense on this, the Respondent
did not cite any authority that privileged its conduct.

Trotter’s protest about the metal detector, he elected the option of see-
ing him outside of the building.
22 The General Counsel requests that I draw an adverse inference
from the Respondent’s failure to call the two witnesses to this event,
officers King and Murphy. I grant the request. Both officers were in a
position to observe all that transpired between Castillo and Trotter. I
infer the Respondent did not call them because their testimony would
have been adverse to the Respondent’s case.
23 I have taken into account the special relationship of trust and re-
sponsibility that is inherent in the wearing of a uniform and the carrying
of a weapon. These are the societal symbols of power and authority.
Stripping these away, in my view, carried a public message of the Re-
spondent’s withdrawal of the trust from Trotter, the union organizer.
24 The conflicting versions of this event do have some common
ground. Trotter’s voluble reaction to discipline is one of them.
25 This description conveniently fits the descriptions of misbehavior
set out in the employee handbook.
26 The Respondent’s brief states, “At that point Heard ordered the
investigation of the veracity of Trotter’s testimony at the representation
case hearing, and Trotter’s employment future at Superior was doomed;
it was the straw that broke the camel’s back.”
27 The interpretation of whether Trotter’s oral requests for transfer
from Galveston to Houston duty station was a “formal” act or not is the
root of this “lying” issue. The Respondent construes Trotter’s failure to
acknowledge his transfer request as a “formal” act a “lie.”
28 The Respondent’s brief alleges in part, “He [Trotter] lied under
oath at the hearing in this case, stating that Heard told him in a joking
The Respondent’s draconian approach towards Trotter’s al-
leged “lies” carries with it serious burdens of proof to be credi-
ble.29 These burdens are never met. Whether Trotter formally
applied for transfer or simply asked for one is an insubstantial
issue. The manner Trotter came to his Houston job is barely
material in the scheme of representation cases issues. Yet, the
Respondent never explained why this question was so tran-
scendently important that alleged “lying “about it warranted
discharge. It only argues that Heard believed the statement
intentionally false, compelling him to act upon it.30 I find this
premise pure subterfuge, masking the true motive of retaliation
for Trotter’s testimony at the Board proceeding and his mani-
fest support for a union whose officials the Respondent found
“disreputable.”31 Bryant & Cooper Steakhouse, 304 NLRB 750
(1991); In-Terminal Service Corp., 309 NLRB 23 (1992). The
Respondent thus violated Section 8(a)(1), (3), and (4) in disci-
plining and then firing Trotter for “lying” to the Board.32 Big
Three Industrial Gas & Equipment Co., 212 NLRB 800 (1974).
D. The October 11 Letter to Employees
The Respondent states the October 11 letter to employees is
in full accord with Section 8(c) of the Act to express its views
freely, provided there is no “threat of reprisal or force or prom-
ise of benefit.” However, it alternatively argues that finding
this letter threatening is a de minimus event, unworthy of a
remedial order. The General Counsel contends, to the contrary,
that this case follows squarely within the ambit of Big Three
Industrial Gas & Equipment Co., supra.33 I am in full agree-

manner not to be late for work.” “He lied under oath at the hearing in
this case, stating that the hearing in the representation case was not over
until after 12:00 p.m., when in fact it was over, according to the official
transcript, at 11:11 a.m.” “He lied under oath at the hearing in this
case, stating that he was late for work because he had to go home and
change clothes. First, he left the hearing at 11:11 a.m. and did not
report to work until 1:45 p.m., and he lives in Houston. Second, he
could have changed his clothes at any number of places at or near the
building where the representation hearing was held or somewhere in
between.”
29 The General Counsel points out that the burden here is proving
testimony false, uttered with intent to deceive, and relating to a substan-
tial issue. The Respondent fails in every aspect of this burden, espe-
cially showing why any of these alleged lies is intrinsically important.
30 I previously found Trotter to be a credible witness. My review of
the record as a whole discloses no instance where Trotter dissembled
on any substantive material issue.
31 In reaching this conclusion, I am satisfied that the history of other
employee discipline sheds little light on whether Trotter was treated
consistent with past practice. The Respondent simply never met the
burdens shifted to it by the General Counsel under Wright Line, supra.
32 The Board, as the General Counsel points out, construes testimony
before it “liberally.” This means even arguably false testimony is pro-
tected as long as it is not willingly and knowingly false or uttered with
an intent to deceive, citing Glover Bottled Gas Co., 275 NLRB 658
(1985). I concur. Objectively, Trotter, like all witnesses, is entitled to
a broadly reasonable standard in a review of his testimony. Only egre-
gious incidents qualify as perjury and, then, only after a considered due
process inquiry by an appropriate body charged with policing such
matters.
33 “The announcement of the discharge with the reason therefore was
a deliberate and contrived attempt to instill fear in the minds of all its
employees that any employee assistance to the Union could and would

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
ment with the General Counsel. Heard’s letter to employees,
on the eve of the election, is a blatant warning that he (the Re-
spondent) fires employees who engage in union activity. Heard
described Trotter as a good employee “apparently influenced
by disreputable individuals resulting in his termination.” There
is no subtlety in this message. The letter does precisely what
Section 8(c) warns of, threatening reprisal and force against
employees engaging in protected concerted activity flagrantly
striking at the heart of what the purpose of the Act is about.
Thus, I find the Respondent violated Section 8 (a)(1) of the Act
by implicitly threatening employees who engage in union activ-
ity or who participate in the Board proceedings.
E. Trotter’s Challenged Ballot
The Respondent challenged Trotter’s ballot at the election as
a discharged employee. Since I find Trotter was discriminato-
rily discharged, he is an eligible voter. Accordingly, I recom-
mend that Trotter’s ballot be opened, counted, and a revised
tally of ballots issue. If the election result establishes union
majority, a Certification of Representative will issue as appro-
priate.
CONCLUSIONS OF LAW
1. By disciplining and then discharging Kelvin Trotter (the
Respondent) has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), and (4)
and Section 2(6) and (7) of the Act.
2. By impliedly threatening employees with discharge, the
Respondent violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall also reimburse the employee for
any additional Federal and/or State income taxes that may re-
sult from the lump sum payment of the monetary award.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Superior Protection, Inc., Houston, Texas,
its officers, agents, successors, and assigns, shall

result in dire consequences to the employees including discharge, if
they engaged in similar conduct.”
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
1. Cease and desist from
(a) Impliedly threatening employees in writing with dis-
charge or discipline for supporting a union.
(b) Discharging or otherwise discriminating against any em-
ployee for supporting United Government Security Officers of
America and its Local 229 or any other union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Kelvin
Trotter 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 previ-
ously enjoyed.
(b) Make Kelvin Trotter whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion to include reimbursing him for any additional Federal or
State income taxes arising out of any lump sum payment to
him.
(c) Within 14 days from the date of this Order, remove from
its files any reference to Kelvin Trotter’s unlawful discipline
and discharge, and within 3 days thereafter notify him writing
that this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in Houston, Texas, copies of the attached notice marked
“Appendix.”35 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 4, 2001.
35 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

SUPERIOR PROTECTION, INC. 961
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.