Akal Security, Inc.

National Labor Relations Board - Board Decisions

May 1, 2009

354 N.L.R.B. 122 (N.L.R.B. 2009)

354 NLRB No. 11
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Akal Security, Inc. and United Government Security
Officers of America, Local 118. Cases 19–CA–
30891, 19–CA–30892, and 19–CA–30950
April 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On September 23, 2008, Administrative Law Judge
Lana H. Parke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.1
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
The judge found that the Respondent violated Section
8(a)(1) by discharging employees Lee Ryan and Stephen
Winther for engaging in protected concerted activity by
holding a meeting while on duty to discuss their concerns
about the performance of another employee, Bill Lopez.
Applying NLRB v. Burnup & Sims, 379 U.S. 21 (1964),

1 The Respondent excepts to the judge’s findings that Lead Court
Security Officer Denny Scieszinski is a supervisor and agent within the
meaning of Sec. 2(11) and (13) of the Act. The Respondent, however,
presented no argument in support of those exceptions. Therefore, in
accordance with Sec. 102.46(b)(2) of the Board’s Rules and Regula-
tions, we disregard those exceptions. GFC Crane Consultants, Inc.,
352 NLRB 1236, 1236 fn. 3 (2008); Holsum de Puerto Rico, Inc., 344
NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
Other than the exceptions to Scieszinski’s status as a supervisor and
agent, discussed above, there are no exceptions to the judge’s findings
that the Respondent, through Scieszinski, violated Sec. 8(a)(1) by
threatening employees with discharge if they spoke to the Board and by
directing employees not to speak to anyone regarding employees’ dis-
charges.
The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
the judge found that the Respondent had a good-faith
belief that Ryan and Winther engaged in misconduct by
harassing and intimidating Lopez during the meeting, but
that the General Counsel proved that the misconduct did
not occur.
Even assuming the judge is correct as to the alleged
harassment and intimidation, we find that the Respondent
had a good-faith belief that Ryan and Winther engaged in
other misconduct by neglecting their duties and the Re-
spondent’s security procedures during the meeting. The
General Counsel failed to prove that this alleged miscon-
duct did not occur. We therefore dismiss the allegation
that the Respondent violated Section 8(a)(1) by discharg-
ing Ryan and Winther.
I. FACTS
A. General Background
The Respondent contracts with the United States Mar-
shals Service (USMS) to provide security services at
Federal courthouses throughout the Ninth Circuit, includ-
ing in Coeur D’Alene, Idaho. The Respondent employed
Ryan and Winther as court security officers (CSOs) at
the Coeur D’Alene courthouse. The Union represents
the Coeur D’Alene CSOs. CSOs cannot work in the
courthouse without credentials, which are issued by the
USMS.
Denny Scieszinski, the Respondent’s lead CSO at the
courthouse, supervises the CSOs. The Respondent em-
ploys a site supervisor, George Mathews, who is Sciesz-
inski’s superior. Mathews’ office is 400 miles away in
Boise. He visits the Coeur D’Alene courthouse once a
month.
During their shifts, the CSOs are assigned to various
“posts” in the courthouse. Post 1 is located at the front
entrance and comprises an x-ray machine, a magnetome-
ter, and a small “control room” housing cameras, the x-
ray monitor, and a telephone. Post 2 is on the second
floor of the courthouse. Posts 3 and 5 are “roving” posts;
CSOs assigned to those posts walk around inside the
courthouse to check for security risks.3 Multiple CSOs
are assigned to post 1 at any given time. Each post as-
signment lasts a certain number of hours. A CSO is not
assigned to the same post for an entire shift.
B. CSOs’ Concerns About Lopez
In July 2005, the Respondent hired Bill Lopez as a
CSO. Over the next 18 months, Winther and Ryan be-
came concerned that Lopez had trouble performing his
duties and jeopardized other CSOs’ safety. In their view,
Lopez let courthouse visitors get close enough to seize
his weapon, failed to attend carefully to the X-ray ma-

3 There is no post 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
chine and magnetometer, was easily diverted, failed to
recognize court officials, and sometimes appeared to
sleep at his post. Winther and Ryan repeatedly reported
their concerns to Scieszinski and discussed them with
fellow CSOs Curtis Exley and Dan Schierman, who
shared many of them. According to Winther and Ryan,
Scieszinski told them not to burden Mathews with the
problem.
In or about early February 2007, Winther and Ryan
continued to complain about Lopez. In response, Lead
CSO Scieszinski told them separately that he had talked
to Lopez twice already and that “you guys” need to “talk
to” Lopez and to start formally documenting any inci-
dents, on forms known as “210” reports. Scieszinski did
not specify when they should talk to Lopez and did not
give permission for them to convene a meeting with the
other CSOs on working time.
C. The CSOs’ February 7 Meeting With Lopez
The courthouse opens for business at 8 a.m. On the
morning of February 7, sometime after 7:30 a.m., Win-
ther and Ryan arranged a meeting for the purpose of con-
fronting Lopez. They did not seek Scieszinski’s permis-
sion or notify him in advance. When Lopez arrived at
work, Winther asked him to join the other CSOs at post
1. Starting between 8:15 and 8:30 a.m., Winther, Ryan,
and Schierman met with Lopez in the control room for
about 30 minutes. Winther, Ryan, and Schierman voiced
their concerns to Lopez about his performance and told
him that they wanted to help him improve. Exley joined
the meeting when he came on duty, about 3 to 5 minutes
before the meeting ended. At the time of the meeting,
Ryan, Exley, and Schierman were assigned to post 1,
Lopez to post 2, and Winther to post 3.
In late March and early April, perceiving no sustained
improvement in Lopez’ performance, the CSOs submit-
ted 210s to Scieszinski describing the February meeting
and their concerns about Lopez. Scieszinski forwarded
the 210s to Site Supervisor Mathews.
D. Site Supervisor Mathews’ Investigation
The Respondent’s contract with the USMS sets forth
“performance standards” with which the CSOs are re-
quired to comply.4 Mathews testified that the contract
requires the Respondent to report all potential violations
of performance standards to the USMS.
On April 19, Mathews visited the courthouse and sepa-
rately interviewed Ryan, Winther, Schierman, Exley, and
Lopez about the February 7 meeting. Mathews told Win-

4 The contract itself is not in evidence, but the existence of perform-
ance standards is referred to in the collective-bargaining agreement.
Many of the standards are quoted in the Respondent’s investigative
reports, discussed below.
ther that it was not the CSOs’ job to evaluate Lopez’
performance, and that he was disappointed that they had
held the meeting. Mathews told Ryan that Ryan had
violated “procedural and conduct standards.”
Mathews then “briefed” the USMS on the situation.
The content of the briefing is unknown, but in a letter to
the Respondent dated April 25, the USMS acknowledged
that it had received a report of “allegedly inappropriate
conduct” that might violate performance standard 17,
which prohibits “discriminat[ing] against or sexually
harass[ing] members of the public, the judiciary, other
employees or engag[ing] in any prohibited activities.”
The letter asked the Respondent to investigate and report
the results.
On April 26, Mathews notified CSOs Ryan, Winther,
Schierman, and Exley that he would meet with them on
April 30 to discuss alleged violations of performance
standards 17, 38 (“Refrain from neglecting duties . . .”),
39 (“Refrain from use of abusive or offensive language
. . .”), and 43 (“Follow employer’s chain of command
procedures on all work related issues”). Mathews noti-
fied CSO Lopez that he would meet with him to discuss
certain other performance standards.
1. April 30 meetings with the CSOs
On April 30, Mathews met separately with Lopez,
Winther, Ryan, Schierman, Exley, and Scieszinski, and
obtained a written statement from each of them concern-
ing the February 7 meeting. Lopez’ statement claimed
that the other CSOs had made him feel “harassed and
mistreated” during the meeting. Schierman’s statement
claimed that Winther and Ryan had been “gruff and
threatening in manner” toward Lopez. Winther and Ryan
each denied engaging in any intimidating conduct or har-
assment.
Scieszinski, in his interview with Mathews and in his
written statement, denied seeing Lopez violate any per-
formance standards and denied any advance knowledge
of the February 7 meeting. Ryan testified that he told
Mathews on April 30 that Scieszinski had told the CSOs
to “get together with [Lopez] and try to get him on
board.” Mathews did not believe Ryan.
2. Investigative findings and discipline
On May 2, Mathews submitted an initial investigatory
report to the USMS, finding that the meeting “was at
least uncomfortable” for Lopez, that it “may have also
been threatening,” and that Ryan, Winther, and Schier-
man had created “a hostile work place.” The report fur-
ther found:
Given that the meeting in question was held at Security
Post #1, during operational hours, for a period of 30
AKAL SECURITY, INC. 3
minutes, I have concluded there was a complete break
down [sic] of security during this period of time. The
Control room is small, having only one window to ob-
serve the front entrance of the facility, cameras and
monitoring equipment are positioned in such away [sic]
that observation would have been difficult to impossi-
ble given the number of officers in such a confined
small space, therefore, it is unlikely given the nature of
the meeting, that officers were prepared or in position
to properly maintain the level of security required. In
addition, other required security posts went unmanned,
in which the attending CSOs were assigned, during this
breach of security.
The report found that Ryan, Winther, and Schierman
had violated various performance standards by holding
the meeting, including performance standards 17 (pro-
hibiting harassment) and performance standards 30, 31,
32, and 38 (requiring adherence to “security procedures
or regulations,” prohibiting desertion of posts, prohibit-
ing “neglecting duties,” and requiring CSOs to “perform
assignments in accordance with prescribed regulations . .
. and in accordance with safe and secure working proce-
dures and practices”). The report also found that Ryan,
Winther, and Schierman had violated “post orders” re-
quiring that two CSOs be stationed at the courthouse
entrance and one in the control room.
On May 7, the Respondent submitted another investi-
gatory report to the USMS, stating its final conclusions
and recommending discipline. The May 7 report found
that all of the participants in the February 7 meeting ex-
cept Lopez had violated, inter alia, performance stan-
dards 30, 32, and 38. The report concluded that Ryan
and Winther (but neither Schierman nor Exley) had also
“engaged in harassing and intimidating actions” toward
Lopez, thereby violating performance standards 2 and
39, which require CSOs to “maintain a respectful and
helpful attitude” and to “refrain from use of abusive or
offensive language, quarreling, [or] intimidation . . . .”
The report found that Ryan “abandoned his roving post”
during the meeting and therefore violated the perform-
ance standard prohibiting CSOs from “clos[ing] or de-
sert[ing] any post.” The report proposed that Exley be
suspended for 1 day, Schierman for 3 days, Winther for 7
days, and Ryan for 10 days.5

5 The May 7 report differed from the May 2 report regarding the tim-
ing of the meeting. The May 2 report found that the meeting occurred
sometime between 8:30 and 9:30 a.m., while the May 7 report found
that it occurred between 8:30 and 9 a.m. The two reports also differed
as to exactly which performance standards had been violated. For
example, the May 2 report found that the alleged harassment of Lopez
violated Performance Standard 17 (the no-harassment standard), but the
May 7 report found that it violated Performance Standards 2 and 39
In a letter dated May 14, the USMS disagreed with the
Respondent’s proposals and recommended that “a
stronger warning be reconsidered.” The Respondent
declined to change its disciplinary recommendation, ex-
cept to add a proposal for “retraining” the CSOs on
proper performance of their duties.
By letter dated May 16, the USMS concurred in the
Respondent’s disciplinary recommendations for Exley
and Scheirman, but found that Ryan and Winther should
be immediately removed from service on the USMS con-
tract. That same day, USMS Deputy Marshals confis-
cated Ryan’s and Winther’s credentials.
By letter dated May 17, the Respondent terminated
Winther and Ryan. The Respondent suggested that they
contact the Respondent if they were interested in work-
ing for Akal under a different contract, but noted that
there were no such contracts in the Coeur D’Alene area.
Winther and Ryan requested reconsideration. The Re-
spondent forwarded their requests to the USMS, which
affirmed the removal decision.
II. JUDGE’S DECISION AND EXCEPTIONS
The judge found that the terminations of Ryan and
Winther should be analyzed under NLRB v. Burnup &
Sims, 379 U.S. 21 (1964), rather than Wright Line,6 be-
cause the terminations were admittedly motivated by the
employees’ participation in the February 7 meeting,
which the judge found was protected concerted activity.
Under Burnup & Sims, “[Section] 8(a)(1) is violated if it
is shown that the discharged employee was at the time

(quoted above in the text). The May 2 report found that Ryan, Winther,
and Schierman had violated Performance Standard 31 (prohibiting the
desertion of any post), but the May 7 report found that only Ryan had
done so. Nevertheless, the May 2 and May 7 reports are consistent in
finding that Ryan, Winther, and Schierman violated certain other stan-
dards, including Performance Standards 30, 32, and 38.
The different findings as to the desertion of posts appear to stem
from the timing of the meeting: the May 7 report found that Ryan was
assigned to a roving position until 9 a.m., at which time he was as-
signed to post 1. As stated above, however, the judge found that Ryan
was assigned to post 1 at the time of the meeting. There are no excep-
tions to that finding, and we therefore adopt it. Based on that finding, it
was Winther, not Ryan, who arguably “abandoned his roving post.”
This error in the Respondent’s report does not affect our decision,
because we find below that the General Counsel failed to prove that
Ryan’s alleged misconduct in violating other performance standards did
not occur.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the General Counsel must prove that antiunion
animus was a substantial or motivating factor in the employment ac-
tion. If the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove by a preponderance of the
evidence that it would have taken the same action even in the absence
of employee union activity. See Manno Electric, 321 NLRB 278, 280
fn. 12 (1996), affd. 127 F.3d 34 (5th Cir. 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
engaged in a protected activity, that the employer knew it
was such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and that
the employee was not, in fact, guilty of that misconduct.”
Id. at 23. It is the Respondent’s burden to show that it
had an honest belief that the employee engaged in mis-
conduct. The burden then shifts to the General Counsel
to prove by a preponderance of the evidence that the em-
ployee did not, in fact, engage in that misconduct. Mar-
shall Engineered Products Co., 351 NLRB 767 (2007);
Pepsi-Cola Co., 330 NLRB 474, 475 fn. 7 (2000).
The judge found that the February 7 meeting was pro-
tected, because its purpose was to address the CSOs’
common concern that Lopez’ performance posed a safety
risk to them. Reasoning that the alleged harassment of
Lopez was the “dominant basis” for the discipline, the
judge found it unnecessary to decide whether Ryan and
Winther lost the Act’s protection by abandoning their
assigned posts or neglecting their duties. In any event,
she found it “unclear” whether such misconduct had oc-
curred. She noted that that Scieszinski sometimes con-
ducted meetings with the CSOs at post 1 and that there
was no evidence that CSOs were not permitted to interact
with one another while on duty.
With respect to the alleged harassment, the judge
found that it did not occur. She concluded that the ter-
minations were based on a good-faith but mistaken belief
that Ryan and Winther had engaged in misconduct in the
course of their protected activity, and that the termina-
tions therefore violated Section 8(a)(1).
The Respondent excepts. It argues, inter alia, that the
judge’s application of Burnup & Sims deprived the Re-
spondent of due process and that Ryan and Winther lost
the protection of the Act by directing the other CSOs to
leave their assigned posts, resulting in a security breach.
III. DISCUSSION
For the reasons stated below, we reject the Respon-
dent’s due process argument, but we disagree with the
judge’s finding that the discharges were unlawful.
A. The Respondent’s Due Process Argument
The Respondent contends that the judge’s application
of Burnup & Sims deprived the Respondent of due proc-
ess, because the General Counsel litigated the case as a
Wright Line violation and failed to contend that the Re-
spondent’s investigative report, a stipulated exhibit, was
mistaken.7 We disagree. The Respondent referred to
Burnup & Sims in its opening statement, contending that
Wright Line was the appropriate standard but that Burnup

7 The General Counsel does not except to the judge’s application of
Burnup & Sims instead of Wright Line.
& Sims would also require dismissal of the complaint. In
its posthearing brief, the Respondent again argued that
the complaint should be dismissed under either standard.
Thus, the Respondent clearly anticipated that Burnup &
Sims could apply and litigated accordingly.
The Respondent erroneously states that the General
Counsel never asserted that the investigative report was
inaccurate. The parties stipulated that the Respondent’s
report was authentic and admissible, but not that it was
an accurate record of the events or that its conclusions
were correct. Although the General Counsel stated that
he was not contending that the investigation and report
were independent violations, he also stated that he in-
tended to argue that there were “discrepancies” between
the Respondent’s investigative report and the actual
facts, even if the report was not intentionally false.8
Accordingly, we find no due process violation in ap-
plying Burnup & Sims.
B. Application of Burnup & Sims
Applying Burnup & Sims, we agree with the judge that
the purpose of the February 7 meeting was protected, and
we further find that the Respondent was aware of that
purpose. CSOs Ryan and Winther informed Site Super-
visor Mathews during his investigation that the meeting
was intended to discuss performance issues that the
CSOs felt affected their safety.9
We disagree, however, with the judge’s finding that
the alleged harassment was the “dominant basis” for the
discipline and that it was therefore unnecessary to decide
whether Ryan and Winther’s alleged neglect of duties
during the meeting constituted misconduct that would
deprive them of the Act’s protection. We find that the
Respondent had a good-faith belief that Ryan and Win-
ther engaged in such misconduct, and that this belief was
a significant factor in the disciplinary decision.
Site Supervisor Mathews believed, based on the state-
ments he obtained from Scieszinski and the CSOs, that
Ryan and Winther had created a security risk by conven-
ing a meeting of the CSOs in the control room during

8 The cases the Respondent cites are inapposite. In New York Post,
353 NLRB No. 30 (2008), the General Counsel’s theory was that an
employee was discharged for his own union activities. The judge im-
properly found a violation under a different theory: that the respondent
sought to make a scapegoat of the employee for sabotage committed by
other union supporters. In Lamar Advertising, 343 NLRB 261, 265
(2004), the complaint alleged that an employee was terminated for
cooperating with the Board’s investigation. The Board found that the
General Counsel improperly attempted to expand the complaint to
allege that the employee was terminated for threatening to retain coun-
sel. Thus, both cases involved a change in the theory of the violation
that would have required litigation of a different set of facts, not just a
change in the analytical framework.
9 Jhirmack Enterprises, 283 NLRB 609, 609 fn. 2 (1987). Indeed,
the Respondent does not except to that finding.
AKAL SECURITY, INC. 5
operational hours, a location from which they could not
fully and effectively monitor the courthouse. The Re-
spondent’s May 2 and May 7 reports found violations of
the performance standards prohibiting employees from
neglecting their duties or the Respondent’s security pro-
cedures. The narrative in the May 2 report said that the
small size of the control room at post 1 made proper
monitoring of that post during the meeting “unlikely”;
found that “other required security posts went un-
manned”; and concluded that the meeting resulted in a
“complete break down [sic] of security.”10
We further find that the General Counsel failed to
prove that the foregoing misconduct did not occur. Al-
though Sciesinski directed Ryan and Winther to talk to
Lopez, it is undisputed that Ryan and Winther never
sought, and Scieszinski never granted, permission to
gather the CSOs for a 30-minute meeting while on duty.
The judge observed that there is no evidence that the
Respondent prohibited the CSOs from “interacting”
while working, but that begs the question of whether the
interaction interfered with the CSOs’ work. The Re-
spondent believed that it did, and, given the nature of the
CSOs’s duties, the General Counsel failed to prove oth-
erwise. The Respondent is responsible for maintaining
security at a Federal courthouse. The CSOs’ attentive-
ness is critical.11 Ryan testified that the CSOs could have
seen through the control room window if anyone was
approaching the courthouse entrance, at which point the
CSOs would have tended to the magnetometer and x-ray
machine. The control room, however, is about 15 feet
from the magnetometer. On cross-examination, Winther
conceded that it is unsafe to leave the magnetometer un-
attended. The judge reasoned that no visitors to the
courthouse were expected and that none tried to enter
during the meeting, but the record fails to establish that
the CSOs were permitted to relax the security procedures
simply because no visitors were anticipated.

10 It is true that the Respondent found that all participants in the
meeting except Lopez had neglected their duties, but recommended
stronger discipline for Ryan and Winther (who the Respondent found
had harassed and intimidated Lopez) than for Schierman and Exley
(who it ultimately concluded had not). However, that does not estab-
lish that the alleged neglect of duties was not a critical factor in the
disciplinary decision. The May 2 report discusses the alleged neglect
of duties at length. Furthermore, Exley arrived at the meeting late and,
as the May 7 report notes, neglected his duties for only 3 to 5 minutes.
Schierman attended the entire meeting, but did not initiate it. Lopez
was not disciplined even though he left post 2 unattended during the
meeting, but the Respondent’s report addressed and ultimately excused
this infraction on the basis that Lopez was brought to the meeting by
Winther without knowing the purpose of the meeting.
11 Indeed, some of the CSOs’ complaints about Lopez involved his
perceived inattentiveness.
Moreover, according to the Respondent’s May 2 and
May 7 reports, the Respondent’s rules require that one or
two of the CSOs assigned to post 1 be stationed outside
the control room. Yet, during the meeting, four CSOs
(five after Exley arrived) were in the control room, and
no one was stationed outside it.12
Finally, and in disagreement with the judge, we de-
cline to accord significance to the fact that Lead CSO
Scieszinski sometimes held meetings at post 1. Scieszin-
ski is a supervisor. The fact that he may have conducted
employee meetings at post 1 on occasion did not entitle
the CSOs to do so on their own initiative.
We find, therefore, that the General Counsel failed to
prove by a preponderance of the evidence that Ryan and
Winther did not engage in misconduct by neglecting their
duties and failing to follow security procedures at the
courthouse during the February 7 meeting. Accordingly,
we dismiss the allegation that the Respondent violated
Section 8(a)(1) by terminating Ryan and Winther.13
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 3(a) and reletter
the subsequent paragraph.
ORDER
The National Labor Relations Board orders that the
Respondent, Akal Security, Inc., Boise, Idaho and Coeur
D’Alene, Idaho, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening any employee with discharge or disci-
pline if the employee speaks to an agent of the National
Labor Relations Board.
(b) Directing any employee not to speak to others re-
garding discharges of employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

12 In addition, Winther, who was assigned to a roving post during
the time of the meeting, was not in fact “roving” during the 30-minute
meeting. Winther admitted on cross-examination that a CSO assigned
to a roving post is supposed to walk around inside the courthouse to
check for security risks.
13 Having dismissed the 8(a)(1) discharge allegation on that basis,
we need not pass on the Respondent’s contention that it was not re-
sponsible for the discharges because it merely implemented the
USMS’s decision to revoke Ryan’s and Winther’s credentials. For the
same reasons, we need not pass on the Respondent’s exception to the
judge’s recommended remedy, the Respondent’s motion to supplement
the record concerning the remedy, or the General Counsel’s motion to
strike “Exhibit 3” (a document cited in support of the Respondent’s
remedial argument) from the Respondent’s Brief in Support of Excep-
tions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(a) Within 14 days after service by the Region, post at
its facilities in Boise, Idaho and Coeur d’Alene, Idaho
copies of the attached notice marked “Appendix.”14
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its expense, a copy
of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
June 26, 2007.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. April 30, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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

14 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.”
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 threaten any employee with discharge or
discipline if the employee speaks to an agent of the Na-
tional Labor Relations Board.
WE WILL NOT direct any employee not to speak to oth-
ers regarding discharges of employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
AKAL SECURITY, INC.
Ryan Connolly and Peter Finch, Attys., for the General Counsel.
Patrick Scully and Emily Keimig, Attys. (Sherman & Howard),
of Denver, Colorado, for the Respondent.
John A. Tucker, Atty. (John A. Tucker Co., L.P.A.), of Akron,
Ohio, for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Coeur d’ Alene, Idaho on May 13 and 14, 2008 upon
orders further consolidating cases, notice of hearing, and
amendment to consolidated complaint issued on January 31,
2008 by the Regional Director of Region 19 (the Regional Di-
rector) of the National Labor Relations Board (the Board),
which consolidated for hearing order consolidating cases, con-
solidated complaint and notice of hearing in Cases 19–CA–
30891 and 19–CA–30892 (issued on December 28) and Cases
19–CA–30950 and 19–RD–3769.1 The complaint, based upon
charges filed by the United Government Security Officers of
America, Local 118 (the Union) alleges Akal Security, Inc. (the
Respondent) violated Section 8(a)(1) of the National Labor
Relations Act (the Act). Respondent essentially denied all
allegations of unlawful conduct.
II. ISSUES
1. Did the Respondent violate Section 8(a)(1) of the Act by
terminating employees Lee Ryan and Stephen Winther from
their positions as security officers at the United States District
Court for Idaho located in Coeur d’ Alene, Idaho because they
engaged in protected concerted activity and/or to discourage
other employees from engaging in protected concerted activity?
2. Did the Respondent violate Section 8(a)(1) of the Act by
threatening employees with discharge or discipline if they
spoke to an agent of the Board and by directing employees not
to speak to anyone regarding discharges of employees?

1 The unfair labor practice pleadings are collectively referred to
herein as “the complaint.” By order dated May 12, 2008, the Regional
Director severed Case 19–RD–3769 from the complaint and approved
the Union’s request to proceed in that matter.
AKAL SECURITY, INC. 7
III. JURISDICTION
At all relevant times, the Respondent, a New Mexico corpo-
ration with offices and places of business in Boise, Idaho and in
the United States District Court for Idaho located in Coeur d’
Alene, Idaho (the Courthouse), has been engaged in the busi-
ness of providing uniformed security personnel to the United
States Marshals Service (the USMS).2 During the representa-
tive 12-month period preceding December 28, 2007,3 in the
course and conduct of its business operations, the Respondent
performed services valued in excess of $50,000 in States other
than the State of Idaho. Respondent admits, and I find, the
Respondent has at all relevant times been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union has at all relevant times been a labor
organization within the meaning of Section 2(5) of the Act.
IV. FINDINGS OF FACT44
A. Authority of Denny Scieszinski
Since October 1, 2000, the Respondent has contracted with
the USMS to provide security services to Federal courthouses
throughout the jurisdiction of the Ninth Circuit Court of Ap-
peals, including the Courthouse (the USMS Security Contract).
Kevin George Mathews (Mathews) stationed in Boise, Idaho, is
the Respondent’s site supervisor for the District of Idaho.
Mathews manages the Respondent’s employees at all five
Idaho Federal courthouses and visits the Courthouse monthly.
The USMS provides credentials for Court Security Officers
(CSOs), without which CSOs cannot be employed in federal
courthouses. Successive collective-bargaining agreements
between the Union and the Respondent (collectively effective
2002 to 2010 (the bargaining agreements) have provided that
the grievance procedures contained therein shall not be utilized
to grieve any employee removal order of the USMS or any
USMS revocation of CSO credentials.
During the period relevant to the complaint, the Respondent
employed the following CSOs at the Courthouse:
Denny Scieszinski (Offi-
cer Scieszinski)
Lee Matthew Ryan (Of-
ficer Ryan)
Employed at the Court-
house since 1994
Stephen G. Winther (Of-
ficer Winther)
Employed at the Court-
house since 1999
Curtis Exley (Officer
Exley)
Dan Schierman (Officer
Schierman)
Bill Lopez (Officer Lo-
pez)

2 The USMS is exempt from the Board’s jurisdiction under the pro-
visions of Sec. 2(2) of the Act, which states: “The term ‘employer’
includes any person acting as an agent of an employer, directly or indi-
rectly, but shall not include the United States or any wholly owned
government corporation, or any Federal Reserve Bank, or any State or
political subdivision thereof . . . .
3 All dates herein are 2007 unless otherwise specified.
4 Unless otherwise explained, findings of fact herein are based on
party admission, stipulations, and uncontroverted testimony.
Bob Guzman (Officer
Guzman)
At all times relevant, Officer Scieszinski served as lead CSO.
The bargaining agreement includes the lead CSO in the CSO
bargaining unit and prohibits the lead CSO from performing
supervisory duties. The USMS security contract requires the
lead CSO to assume, in pertinent part, the following duties:
provide direct supervision to all CSOs; assure all posts are cov-
ered as directed by the Government; assure all CSOs are pre-
sent and in proper uniform; determine any changes that may be
required in the daily routine.
As lead CSO during the relevant period, Officer Scieszinski
had no authority to discipline employees. In about June 2006,
Officer Exley submitted an application for employment to Offi-
cer Scieszinski who thereafter notified Officer Exley that he
was hired.5 Officer Scieszinski scheduled the CSOs’ work
shifts, assigning them to the following duty posts or moving
them to specific locations in the Courthouse as courthouse
schedules or circumstances dictated:
Post 1—comprising (1) the Courthouse entryway, where
CSOs operate an X-ray and magnetometer machine; (2) a
small windowed control room, containing a monitor and per-
mitting full view of and communication with persons in the
entryway.
Post 2—comprising the second floor of the Courthouse where
the courtroom is located.
Posts 3 and 5—comprising rover positions, responsive to any
area where additional manpower is needed.
In the event of “high profile” cases6 or criminal trials, Offi-
cer Scieszinski might reassign CSOs to courthouse locations
where courthouse-visitor activity or prisoner/jury contact could
be closely monitored. When overtime work was required for
which no employee volunteered, Officer Scieszinski selected
overtime candidates.7 Officer Scieszinski granted and denied
employee requests for time off and held CSO meetings in the
control room at Post 1 to discuss work issues and to dissemi-
nate information received from Boise management. Officer
Scieszinski assigned Officer Ryan to oversee new-employee
training of Officer Lopez. Except for the occasions of Mr.
Mathews’ monthly visits, Officer Scieszinski was the only per-
son in charge of the Respondent’s employees at the Court-
house.
B. Terminations of Stephen G. Winther and Lee Matthew Ryan
In July 2005, the Respondent hired Officer Lopez to work at
the Courthouse. Over the ensuing 18 months, Officers Winther
and Ryan observed Officer Lopez’ work with increasing con-
cern. They felt Officer Lopez jeopardized his and others’

5 There is no direct evidence that Officer Scieszinski effected Officer
Exley’s employment; he later told Officer Exley that if he did not like
an employment candidate, the candidate would not be employed at the
Courthouse.
6 A high profile case draws numerous family members and/or spec-
tators to the Court.
7 Disputes concerning overtime assignments could be brought to the
attention of Mathews for resolution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
safety by, among other things, letting courthouse visitors get
close enough to him to be able to seize his weapon, failing to
attend carefully to items coming through the X-ray machine or
to individuals coming through the magnetometer, being easily
diverted, letting unauthorized persons enter through the back
door without screening, and directing visitors with immoderate
gestures that distracted both security personnel and visitors and
posed safety risks. Officer Ryan also allegedly noted two in-
stances of Officer Lopez sleeping while on duty at Post 2. Of-
ficers Winther and Ryan repeatedly reported their concerns to
Officer Scieszinski and discussed them with Officers Exley and
Schierman, who shared many of them. According to Officer
Ryan, Officer Scieszinski told him not to burden Mr. Mathews
with the problem, saying he would handle it. To Officers Win-
ther and Ryan’s observations, however, the problems contin-
ued.8
At some point, Officer Scieszinski told the CSOs, excepting
Officer Lopez, that he needed documentation of incidents Offi-
cer Lopez was involved in and requested them to fill out “210s”
on Officer Lopez. A “210” refers to the USMS Form-210,
entitled “Field Report,” which Courthouse employees use to
report onsite incidents (210-report) and which are submitted to
the U.S. Marshals Service.9 In a conversation occurring in
early February, Officer Scieszinski told Officers Winther and
Ryan they needed to talk to Officer Lopez and then write their
complaints on a 210-Report.10 Officer Winther asked Officers
Exley and Schierman if they thought it was a good idea to meet
with Officer Lopez because “everybody was complaining about
him within the ranks on a daily basis, and [Officer Scieszinski]
had told us to go talk to him.” Officers Exley and Schierman
agreed to meet with Officer Lopez.11
On the morning of February 6 or 7, Officers Winther and
Ryan arranged a meeting among themselves and other CSOs
for the purpose of confronting Officer Lopez about his job per-
formance.12 No Courthouse activity was scheduled for that

8 The recounting of Officers Winther and Ryan’s concerns about Of-
ficer Lopez’ job performance does not constitute any finding that Offi-
cer Lopez was, in fact, derelict in any of his job duties. Such a finding
is unnecessary to the issues herein, and in any event the evidence estab-
lishes only the sincerity of, not the actuality of, Officers Winther and
Ryan’s beliefs.
9 It is unclear when Officer Scieszinski requested 210-reports. Offi-
cer Winther places the request as shortly before February 6. Officer
Exley testified Officer Scieszinski made the request on two occasions
around the end of 2006 or the first of 2007 to him and Officer Ryan and
to Officer Winther or Officer Schierman.
10 Officer Scieszinski did not testify about events relating to the Lo-
pez Meeting, and the testimony of Officers Winther and Ryan is uncon-
troverted. The evidence supports a finding that Officer Scieszinski
suggested Officers Winther and Ryan “talk” to Officer Lopez about
their concerns; the evidence does not demonstrate that he authorized
any work time CSO meeting with Officer Lopez.
11 In a later written statement provided to the Respondent, detailed
below, Officer Exley stated he had not been “previously informed of
the meeting.” Officer Exley’s statement does not preclude his having
been consulted about a potential meeting, and I credit Officer Winther’s
testimony that Officer Exley agreed to meet with Officer Lopez.
12 Some CSOs place this meeting on February 6. According to the
Respondent, Post records and sign-in sheets show the meeting most
day, which meant minimal visitors to the Courthouse. When
Officer Lopez arrived at work later that morning, Officer Win-
ther asked him to join his fellow officers at Post 1, as they
wanted to talk to him. Officer Lopez agreed, meeting with
Officers Winther, Ryan, and Schierman in the control room at
Post 1 commencing sometime between 8:15 and 8:30 a.m. (the
Lopez Meeting).13 At the time of the meeting, Officers Ryan,
Exley, and Schierman were assigned to Post 1, Officer Lopez to
Post 2, and Officer Winther to Post 3, a rover position.
At the Lopez Meeting, Officers Winther, Ryan, and Schier-
man told Officer Lopez that his coworkers had complaints
about his work, that he needed to get up to speed, that his job
performance was lacking, and that he needed a better grasp of
his duties. The men told Officer Lopez they hoped to help him
improve and were there to offer assistance. Officer Ryan said
that Officer Scieszinski had indicated he wanted to fire Officer
Lopez. At about 9 a.m., Officer Winther left the Lopez Meet-
ing, as Officer Exley joined it. Officer Ryan summarized the
discussion for Officer Exley’s benefit, and Officer Exley said
he had already discussed his safety concerns with Officer Lo-
pez. Officer Ryan told Officer Lopez the CSOs would try to
get back together with him in about 30 days to review with him
and see if there had been any improvement. Officer Lopez said
that if he couldn’t do the job, perhaps he should just quit; he
also expressed appreciation for the Officers’ comments and
said he would try to do better.14
In the weeks following, Officers Winther and Ryan saw no
improvement in Officer Lopez’ performance. On March 25,
Officer Winther submitted a 210-report to Officer Scieszinski
regarding Officer Lopez’ “Inability to Perform CSP Duties,”
(Officer Winther’s 210-report). The narrative portion of Offi-
cer Winther’s 210-report stated, in pertinent part, “The purpose
of this report is to begin documenting continuing incidents of
Wm. Lopez’ inability to perform officer duties. Lopez has had
difficulty grasping the duties of officer work since he began 2
years ago. Lopez has been continually instructed by other Offi-
cers including myself with less than satisfactory results.” Offi-
cer Winther listed 14 specific examples of what he considered
to be Officer Lopez’ unprofessional and safety-compromising
behavior, including standing too close to visitors, inability to
remember faces and names, making distracting gestures, failure
to read the events list or understand the scheduling process, and
uncertainty in making simple decisions.
On March 26, Officer Ryan signed a 210-report regarding
“Observation of Officer Bill Lopez” (Officer Ryan’s 210-

likely occurred on February 7. It is unnecessary to extablish the exact
date.
13 Officer Exley joined the meeting a few minutes before it ended.
14 In its posthearing brief, the Respondent asserts that Officer Ryan
admitted he called the Lopez meeting because he wanted Officer Lopez
fired. The record does not reflect any such admission. Officer Ryan
testified that in his April meeting with Mathews, he told Mathews,
“[Officer Lopez] needs to be fired if he’s going to continue to jeopard-
ize the other employees and personnel in this courthouse. He’s a safety
hazard. He’s going to get us in a shooting, and I don’t want to work
with him. He needs to either pick up the pace or get fired.” Officer
Ryan’s testimony does not justify the inference the Respondent appar-
ently asks me to draw
AKAL SECURITY, INC. 9
report).15 The narrative portion of the 210-report summarized
Officer Ryan’s earlier expressed criticism of Officer Lopez and
stated:
On 2/6/07 all Officers talked with Bill as a group to attempt to
help him better understand the scope of the job and bring him
up to speed. The following issues were discussed with Bill:
1. Unprofessional demeanor dealing with Court family, attor-
neys and the public. 2. He does not follow officer safety pro-
cedures at Post 1, Main entry screening area. 3. Use of foul
language, has been told numerous times to refrain from using
bad language. 4. Late to arrive on post, states he forgets
where he is to be assigned. 5. He continually asks the same
questions day after day about courtroom activity, prisoner
movement. He is unable to remember the names of Federal
Judges and the names of staff members. 6. Officer Lopez will
not assume the responsibility of the Control Room he will
stand in the doorway for 1 hour instead of assuming the re-
sponsibility. 7. When the Officer gives a briefing on activities
around the courthouse Officer Lopez will burst out in laughter
then look at other Officer’s and stop.
Officer Ryan’s 210-report concluded, in pertinent part, “In my
opinion, if a hostile situation were to develop at Post 1, I
strongly doubt Officer Lopez will have the presence of mind or
the ability to react in a timely manner.”
On April 6, Officer Exley submitted to Officer Scieszinski a
210-report describing allegedly unsafe procedures practiced by
Officer Lopez on March 26 at Post 1. On April 9, Officer
Schierman submitted to Officer Scieszinski a 210-report de-
scribing the Lopez Meeting and detailing additional complaints
about Officer Lopez relating to use of profanity and perceived
memory problems.
On April 12, Officer Winther submitted a continuation of his
March 25 210-report to Officer Scieszinski, which read in per-
tinent part, “The purpose of this report is to continue to docu-
ment CSO Lopez’s inability to remember and or retain informa-
tion pertaining to his duties as an Officer at the Coeur D’Alene
Federal Courthouse.” Officer Winther detailed an April 12
incident in which he allegedly observed Officer Lopez fail to
recognize the District of Idaho District Attorney who had been
a frequent visitor to the Courthouse during Officer Lopez’ em-
ployment.
Sometime prior to April 19, Mathews reviewed the 210-
reports of Officers Winther, Ryan, Exley, and Schierman. On
April 19, Mr. Mathews visited the Courthouse and separately
interviewed each complainant as well as Officer Lopez. Meet-
ing with Officer Winther, Mathews told Officer Winther he was
disappointed that he had held the Lopez meeting. Mathews
asked who had authorized the meeting. Officer Winther said he
did not know; he explained that when the CSOs complained
about Officer Lopez to Officer Scieszinski, he told them to talk
to Officer Lopez about his performance. Officer Winther told
Mathews the CSOs had held the meeting with the good inten-

15 Officer Ryan had given this report in “rough” a week earlier to Of-
ficer Scieszinski who thereafter typed it in final for Officer Ryan’s
signature because the report needed to be submitted to Mr. Mathews
immediately.
tion of helping Officer Lopez. Mathews said it was not the
CSOs’ job to evaluate Officer Lopez’ performance. Officer
Winther disagreed, saying that when it came to CSO safety
issues, CSOs should have a say in another CSO’s performance.
Meeting with Officer Ryan, Mathews told him that his 210-
report was “way out there” compared to the others and that he
was out of line. Mathews said if he were to send anybody
home, it would be Officer Ryan, not Bill Lopez. Officer Ryan
said he thought the investigation was about Officer Lopez and
his inability to do the job and asked how it had suddenly fo-
cused on him. Mathews said, “There’s procedural and conduct
standards that you violated.” Officer Ryan complained that
Officer Lopez was a walking hazard to the other CSOs.
After interviewing the CSOs on April 19, Mathews told
Larry Homenick, the Respondent’s contract manager, what he
had learned, advising him there appeared to be violations of
CSO performance standards that would have to be investigated,
and of which the USMS would have to be informed under the
terms of the USMS Security Contract. Thereafter, Mathews
“briefed” Deputy Dave Meyer of the USMS Judicial Security
Division on the situation. No evidence was provided as to what
information or details Mathews communicated to the USMS
Judicial Security Division, but it is reasonable to infer from the
following April 25 USMS letter that Mathews told Deputy
Meyer the circumstances of the Lopez Meeting.
By letter dated April 25, the Judicial Security Division of the
USMS wrote to the Respondent, in pertinent part, as follows:
The Government is in receipt of a report of the allegedly in-
appropriate conduct of your employees: CSOs Ryan, Winther,
Schierman, and Exley . . . . Allegedly, the four CSOs have
conspired to harass a fellow CSO, Bill Lopez . . . . Under the
terms of the contract, your employees are required to meet the
performance standards as set forth in the CSO Standards of
Performance. In accordance with…the contract, Removal of
CSOs and Other Contractor Personnel, you are requested to
investigate the alleged actions, and report the results of the in-
vestigation to the contracting officer. Please provide your re-
port within five business days of the date of this letter. Your
findings should include any disciplinary action taken, should
such be warranted.
By memorandum dated April 26, Mathews notified Officers
Winther, Ryan, Schierman, and Exley that he would meet with
them on April 30 to discuss alleged violations of the following
sections of the Respondent’s Performance Standards, as stated:
#17 Not discriminate against [or sexually harass members of
the public, the judiciary, other employees] or engage in any
prohibited personnel practice.
#38 Refrain from neglecting duties…
#39 Refrain from use of abusive or offensive language…
#43 Follow employer’s chain of command procedures on all
work related issues.
On April 30 Mathews met with Officer Lopez, who submit-
ted a written “Employee Statement” in which he denied derelic-
tion of duty and described the Lopez Meeting, in pertinent part,
as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
[Officer Ryan] said they were having this meeting without
[Officer Scieszinski] or any other supervisor being present
because they were helping me and they did not tell [Officer
Scieszinski] of this meeting. The meeting covered their idea
of how I was supposed to perform my duties according to
them, and [Officer Winther] said that I did the job opposite of
how they did it and that I was doing it wrong. I was talked
down to and basically scolded by the individuals of the group.
The meeting made me feel harassed and mistreated. I felt that
the method used was very degrading to me and shameful on
them in working around [Officer Scieszinski]. He never
treated me like the group did . . . . I took this job to help the
Federal Court to be safe not to be harassed and treated like a
second class citizen by my fellow security officer[s].
Mathews also met separately with Officers Winther, Ryan,
Schierman, Exley, and Scieszinski, obtaining written statements
from them. Officer Schierman’s statement included his opin-
ion: “I felt [Officers Winther and Ryan] were gruff and threat-
ening in manner while talking to [Officer Lopez].”16 Officer
Exley’s statement described the Lopez Meeting, in pertinent
part, as follows:
I was not previously informed of the meeting [which] lasted
approximately 3–5 minutes after I arrived . . . CSO Ryan,
Winther, Schierman and Lopez were present. CSO Ryan in-
formed me that they had met with CSO Lopez regarding his
work performance, had discussed all issues with him and
would revisit the issues in 30 or so days. CSO Ryan advised
he called the meeting as the Union President to assist CSO
Lopez in realizing what issues were at hand and how we
could assist in helping him change or learn.17 CSO Lopez
didn’t have any rebuttal except to say that he would try to
change.
During Mathews’ meeting with Officer Ryan, Officer Ryan
told Mathews that sometime in the previous 6-month period,
Officer Scieszinski had agreed with Officer Ryan that Officer
Lopez did not practice good officer safety conduct and had said
the CSOs needed to “get together with [Officer Lopez] and try
to get him on board.” Mathews declined to believe Officer
Ryan.
On May 2, Mathews submitted a 10-page investigative report
to the USMS, detailing the information gathered and stating, in
pertinent part:
Summary: On 5/02/07, this investigation concluded the alle-

16 Called as a rebuttal witness by the General Counsel, Officer
Schierman was not questioned about the Lopez Meeting. I find his
unsworn, out-of-court opinion of Officers Winther and Ryan’s “gruff
and threatening” manner to be too subjective to be accorded any
weight.
17 In his written statement, Officer Schierman said he “believe[d]
[Officer Ryan called the meeting] because as Union president he
thought he had some type of authority to do this.” Officer Exley testi-
fied that when he joined the Lopez Meeting, Officer Ryan said, “Being
I’m the union president, I’ll tell you what we were doing here, talking
about Bill’s performance issues.” The evidence does not support a
finding that Officer Ryan conducted the meeting as a union-authorized
assembly.
gation that CSOs Ryan, Winther and Schierman engaged in a
prohibited activity, an unauthorized meeting to critique the
job performance of [Officer Lopez], thereby creating a hostile
work place, was SUSTAINED. (Performance Standard #17)
. . . .
The investigation has shown that clearly CSO Lopez was the
victim of harassment in the work place. He had become com-
pliant with his attackers I what he (Lopez) felt was the only
way to get along, even to the point of thanking those who had
taken advantage of him. It is believed that he (Lopez) was not
a willing participant in the meeting, but the object of the meet-
ing.
Conclusion:
. . . .
The tone of the [Lopez Meeting] was at least uncomfortable
for CSO Lopez. There is a suggestion that it may have also
been threatening…As a result I believe that CSO Lopez has
been the subject of a hostile work place having been created
by the meeting in question…Given that the meeting in ques-
tion was held at Security Post #1, during operational hours,
for a period of 30 minutes, I have concluded there was a com-
plete breakdown of security during this period of time.
By letter dated May 7, the Respondent proposed the follow-
ing CSO disciplinary actions to the USMS:
Officer Exley and Schierman: one-day and three-day suspen-
sions, respectively, along with a warning that future substanti-
ated violations of the CSO Performance Standards, post or-
ders, or Akal or USMD policies would result in additional
disciplinary action.
Officer Winther: seven-day suspension, a warning that future
substantiated violations of the CSO Performance Standards,
post orders, or Akal or USMD policies would result in addi-
tional disciplinary action, and a final warning that future sub-
stantiated incidents where it is determined that CSO Winther
has engaged in actions that contribute to a hostile work envi-
ronment would result in termination of employment.
Officer Ryan: ten-day suspension and a final warning that fu-
ture substantiated violations of the CSO Performance Stan-
dards, post orders, or Akal or USMD policies would result in
termination of employment. Specific Notification to be given
that actions contributing to a hostile work environment will
not be tolerated.18
By letter dated May 16, the USMS notified the Respondent
that it did not concur with the Respondent’s proposed discipline
of Officers Winther and Ryan and stated:
[Officers Winther and Ryan] shall be immediately removed
from performing under [the USMS Security Contract] . . .
Please be aware that this action does not, in any way, prevent
[Officers Winther and Ryan] from continued employment
with Akal; it only prevents them from performing services

18 The complaint does not allege that any of the proposed suspen-
sions violates the Act.
AKAL SECURITY, INC. 11
under [the USMS Security Contract . . . [Officers Winther and
Ryan] shall relinquish all Government furnished property to
the [USMS].
On the same date, USMS deputy marshals collected Officers
Winther and Ryan’s credentials and firearms, all of which had
been furnished by the USMS.
By letters dated May 17, the Respondent informed Officers
Winther and Ryan of the USMS decision, attaching to each
letter a copy of the USMS’ May 16 letter, and stated in perti-
nent part:
Akal Security, Inc. has received . . . communications from the
U.S. Marshals Service dated May 16, 2007, indicating that
they have ordered your permanent removal from the position
of [CSO]. As Akal is under contract to the U.S. Marshals
Service, we are required by contract to comply with the direc-
tives issued under the terms of that contract by removing you
from the position of CSO. As a direct result of the Govern-
ment’s order of removal, your employment as a CSO with
Akal Security is terminated effective May 16, 2007 . . . Akal
Security, Inc. would like to inform you that should you be in-
terested in maintaining a position with Akal Security, Inc. on
a different contract, please contact Justinder Singh Reilly.
Please note that Akal currently does not have other options of
employment in the Coeur d’Alene area and maintaining em-
ployment with Akal on a different contract will require that
you relocate.19
C. Alleged Threats to Employees for Speaking with
Agents of the NLRB
The Charging Party filed unfair labor practice charges alleg-
ing unlawful termination on June 7. Officer Scieszinski spoke
to the CSOs about talking to the NLRB agent investigating the
charges herein on the following occasions:
June 26: While at work, Officer Scieszinski told Officer Ex-
ley that if he spoke to the NLRB agent he would be fired.
July 2: Officer Scieszinski called CSOs Exley, Guzman,
Schierman, and Lopez together for a 30-minute employee
meeting at Post 1. In the course of the meeting, Officer Sci-
eszinski told the CSOs they were not to talk to the NLRB
agent or they could be fired.
July 2: Following the employee meeting, Officer Scieszinski
told Officer Exley that after Mr. Mathews contacted the NLRB
agent, the Respondent would let employees know if they could
say anything.
July 16: Officer Scieszinski again called CSOs Exley,
Guzman, Schierman, and Lopez together for a 30-minute em-
ployee meeting at Post 1. In the course of the meeting, Offi-
cer Scieszinski told the CSOs the NLRB subpoenas they had
received were worthless. He told the CSOs they could talk to
the NLRB agent about the NLRB issues but could not divulge
any operational information, post orders, or anything about
security procedures, adding, “In other words, you really can’t

19 The Respondent’s nearest non-USMS security contract operates in
Seattle, Washington.
say anything.”
On July 19, Mathews informed Officer Exley by telephone
that Officer Scieszinski had given the CSOs bad information.
Mathews assured Officer Exley he could talk to the NLRB
agent about anything, as the company wanted to be open about
the NLRB issues.
V. DISCUSSION
A. Supervisory and/or Agency Status of Officer Scieszinski
Section 2(11) of the Act defines a supervisor as:
Any individual having the authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
The General Counsel asserts Officer Scieszinski’s supervi-
sory status and bears the burden of proving it. See Oakwood
Healthcare, Inc., 348 NLRB 686 (2006); Croft Metals, Inc.,
348 NRLB 717 (2006); and Golden Crest Healthcare Center,
348 NLRB 727 (2006), which also addressed the meaning of
terms “assign,” “responsibly to direct,” and “independent
judgment,” as used in Section 2(11) of the Act, under the
framework of the Supreme Court’s decision in NLRB v. Ken-
tucky River Community Care, 532 U.S. 706 (2001).
As lead CSO during the relevant period, Officer Scieszinski
had no authority to discipline employees. Although Officer
Scieszinski accepted an employment application from Officer
Exley and later communicated to him an offer of employment,
there is no clear evidence Officer Scieszinski had authority to
hire or to recommend the hire of employees.20 Officer Sciesz-
inski was the only on-site officer in charge of the Respondent’s
employees at the Courthouse. As such, he scheduled the CSOs’
work shifts, assigning them to duty posts or moving them to
specific locations in the Courthouse as the Courthouse activity
schedules or unexpected incidents dictated, assigned overtime,
granted/denied time off, and held employee meetings to discuss
work issues. While most of Officer Scieszinski’s duty post
assignments appear to involve the performance of routine tasks
and responsibilities, that fact “does not preclude the possibility
that such regular assignments require the exercise of independ-
ent judgment.” Loyalhanna Care Center, 352 NLRB 863, 864
fn. 4 (2008). Given the potential ramification of security as-
signments in a federal courthouse setting, particularly during
“high profile” cases or criminal trials, the authority to make
such assignments requires independent judgment. See RCC

20 Officer Scieszinski told Officer Exley that if he did not like an
employment candidate, the candidate would not be employed at the
Courthouse. If Officer Scieszinski’s statement accurately reflected his
employment veto power, it would establish his supervisory authority.
See Sheraton Universal Hotel, 350 NLRB 1114, 1117–1118 (2007).
However, without more direct evidence of such authority, I cannot find
Officer Scieszinski could, in fact, positively or negatively influence
hiring decisions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Fabricators, Inc., 352 NLRB 701 (2008).
I find Officer Scieszinski possessed and exercised supervi-
sory authority to assign CSOs to their daily posts and to signifi-
cant duties and responsibilities as normal or exigent security
demands required. The extent and complexity of his authority
necessarily entailed independent judgment as to those assign-
ments. Ibid. Accordingly, at all times relevant hereto, Officer
Scieszinski was a supervisor with the meaning of Section 2(11)
of the Act.
Counsel for the General Counsel asserts that irrespective of
supervisory authority, Officer Scieszinski acted as the agent of
the Respondent in actions relevant to this matter. The General
Counsel bears the burden of proving the agency allegation.
With regard to agency, Section 2(13) of the Act provides:
In determining whether any person is acting as an "agent" of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.
The Board adopts the concept of apparent authority and ap-
plies the common law principles of agency when determining
whether apparent authority is created: “Apparent authority re-
sults from a manifestation by the principal to a third party that
creates a reasonable belief that the principal has authorized the
alleged agent to perform the acts in question. Either the princi-
pal must intend to cause the third person to believe the agent is
authorized to act for him, or the principal should realize that its
conduct is likely to create such a belief. The Board's test for
determining whether an employee is an agent of the employer
is whether, under all of the circumstances, employees would
reasonably believe that the employee in question was reflecting
company policy and speaking and acting for management.”
Albertson’s Inc., 344 NLRB 1172 (2005), citing Pan-Osten
Co., 336 NLRB 305, 305–306 (2001); L.B.&B. Associates, Inc.,
346 NLRB 1025 fn. 17 (2006). Employees who regularly fn. .
communicate management’s directives to employees act as
agents in furnishing employment-related information to em-
ployees in the course of his or her regular duties. Pan-Osten,
supra.
As Lead CSO, Officer Scieszinski was generally the highest
ranking officer at the Courthouse. Officer Scieszinski assigned
CSO duties and communicated management decisions to the
CSOs, holding periodic employee meetings to cover employ-
ment topics. As Respondent made Officer Scieszinski a “con-
duit of information to employees on their day-to-day duties,”
Respondent placed him in a position where the CSOs could
reasonably believe he spoke for management. Mid-South Dry-
wall Co., 339 NLRB 480, 480–481 (2003).21 Accordingly, I
find the General Counsel met his burden of proving the Re-
spondent vested Officer Scieszinski with apparent authority to
act as its agent at relevant times and his conduct at issue herein
is attributable to the Respondent.

21 Mathews reinforced the appearance of Officer Scieszinski’s au-
thority to speak for management when on July 19, he told Officer Exley
that Officer Scieszinski had given the CSOs bad information, but failed
to deny that Officer Scieszinski was authorized to give information.
B. Terminations of Stephen G. Winther and Lee Matthew Ryan
Strictly speaking, the Respondent did not terminate Officers
Winther and Ryan from employment with the Respondent. The
USMS revocation of Officers Winther and Ryan’s credentials
meant the Respondent could no longer employ the two CSOs at
the Courthouse, but the Respondent did not terminate their
employment opportunities at non-USMS locations. However,
when Officers Winther and Ryan’s employment at the Court-
house ended, since the Respondent’s nearest non-USMS secu-
rity contract was several hundred miles from Coeur d’Alene,
continued employment with the Respondent was essentially
unavailable to them. For convenience, I refer to the Respon-
dent’s inability to employ Officers Winther and Ryan at the
Courthouse as the Courthouse terminations. The complaint
does not allege that the Respondent’s investigation or proposed
suspensions of Officers Winther and Ryan are unlawful; ac-
cordingly, I address only their Courthouse terminations.
No party disputes that Officers Winther and Ryan engaged in
concerted activity when they organized and conducted the Lo-
pez meeting for the purpose of discussing with Officer Lopez
his alleged performance shortcomings that assertedly impacted
CSO safety. The question is whether their conduct was pro-
tected.
The General Counsel argues that Officers Winther and
Ryan’s participation in the Lopez meeting was protected by the
Act and that the Respondent’s adverse action against them vio-
lates Section 8(a)(1) of the Act.22 The General Counsel further
argues that the Respondent improperly targeted Officers Win-
ther and Ryan’s protected activity by its investigation of the
Lopez Meeting and resultant recommended discipline. Since
the USMS’ revocation of Officers Winther and Ryan’s creden-
tials was based on the Respondent’s investigatory report and
recommendation, the Respondent is ultimately responsible for
the officers’ Courthouse terminations. Having no jurisdiction
to require the USMS to rescind its revocation of Officers Win-
ther and Ryan’s credentials, the General Counsel does not seek
reinstatement for the two officers but asks that the Respondent
be required to seek USMS restoration of Officers Winther and
Ryan’s credentials and to make the two employees whole for
lost wages and benefits.
The Respondent argues that Officers Winther and Ryan were
not engaged in protected activity by arranging and conducting
the Lopez Meeting. The Respondent contends the two officers’
pre-meeting failure to complain through official channels about
Officer Lopez’ job performance shows they were not address-
ing employee safety concerns but were conducting “a sort of
hazing designed…to facilitate [Officer Lopez’] resignation or
removal from the Courthouse...[which] arguably constituted

22 The General Counsel maintains that Officers Winther and Ryan’s
supervisor, Officer Scieszinski, directed the two officers to speak to
Officer Lopez regarding their concerns about his job performance, and
“[t]hus, the meeting at issue was undertaken at [Officer] Scieszinski’s
suggestion.” Impliedly, the General Counsel argues that Officer Sci-
eszinski’s direction conferred protection on Officers Winther and
Ryan’s participation. Since I have found that although Officer Sciesz-
inski recommended the CSOs speak to Officer Lopez about their com-
plaints, he did not authorize the Lopez Meeting, I do not address this
argument.
AKAL SECURITY, INC. 13
harassment of a fellow employee.”
Counsel for the General Counsel asks me to apply the analy-
sis prescribed by Wright Line23 to determine whether the Court-
house terminations of Officers Winther and Ryan violate the
Act. The Wright Line analysis is appropriately used in cases
that turn on motive. Here the existence or lack of unlawful
animus is not relevant as the Respondent’s adverse employment
actions against Officers Winther and Ryan were admittedly
motivated by the two officers’ involvement in the Lopez Meet-
ing. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964);
CGLM, Inc., 350 NLRB 974 fn. 2 (2007); Phoenix Transit
System, 337 NLRB 510, 510 (2002); Shamrock Foods Co., 337
NLRB 915 (2002). An employer independently violates Sec-
tion 8(a)(1) of the Act if, “having knowledge of an employee's
activity, it takes adverse employment action that is ‘motivated
by the employee's protected concerted activity.’” CGLM, Inc.,
at 979, quoting Meyer Industries, 268 NLRB 493, 497 (1984).
Therefore, the Wright Line analysis is not appropriate here.
Under the legal framework of Burnup & Sims, supra, the
General Counsel must establish that the disciplined employees
engaged in protected activity, that the employer was aware of
said activity,24 that the basis for the adverse employment ac-
tions was an alleged act of misconduct arising in the course of
the activity, and that the employees were not guilty of the al-
leged misconduct.
The Respondent admits that it initially proposed to suspend
Officers Winther and Ryan, and later implemented the USMS’
revocation of their credentials, because the two officers planned
and conducted the Lopez Meeting. The Respondent’s censure
of the Lopez meeting falls, essentially, into two categories: (1)
Officers Winther and Ryan allegedly created a hostile work
environment by their unauthorized critique of Officer Lopez’
job performance and their correlative failure to follow chain of
command in reporting rules violations rather than addressing
Officer Lopez directly; and (2) Officers Winther and Ryan
conducted the Lopez meeting during courthouse operational
hours, resulting in a breakdown of security procedures when
security posts were left unmanned. Since the Act’s protections
may not apply uniformly to the two categories, it is necessary
to determine, if possible, which category was the critical basis
for the discipline imposed on Officers Winther and Ryan.
The evidence warrants a finding that Officers Winther and
Ryan would not have been terminated from their courthouse
positions but for their meeting with Officer Lopez to express
their dissatisfaction with his job performance. The Respon-
dent’s May 2 Investigation Report focuses on Officers Winther
and Ryan having allegedly created a hostile work environment
by holding the Lopez Meeting, and, in its posthearing brief, the
Respondent notes that specific conduct as the dominant basis
for its proposed discipline: “Primarily, Mathews determined
that Ryan, Winther, and Schierman had violated Performance

23 251 NLRB 1083 (1980) enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
24 It is not necessary for the General Counsel to show that the Re-
spondent knew Officers Winther and Ryan’s conduct was protected, as
evidence of employer knowledge is not a necessary element of an
8(a)(1) violation. See Meijer, Inc., 344 NLRB 916 (2005).
Standard 17 by creating a hostile work environment.” Further,
the Respondent did not terminate Officers Schierman, Exley, or
Lopez although all three were, by the Respondent’s definition,
absent from their duty posts during the Lopez Meeting. The
evidence as a whole therefore supports a finding that Officers
Winther and Ryan would have been disciplined for their roles
in the Lopez Meeting regardless of whether they violated work
rules by deserting their posts and neglecting their duties during
the meeting. Since the sine qua non of Officers Winther and
Ryan’s Courthouse terminations is their February confrontation
of Officer Lopez, the issue is whether the confrontation is pro-
tected by the Act. See Valley Hospital Medical Center, Inc.,
351 NLRB 1250, 1251 fn. 5 (2007). It is unnecessary to re-
solve whether Officers Winther and Ryan’s alleged inattention
to security post assignments during the Lopez Meeting was
unprotected by the Act.25
Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have the right to . . . engage in . . . concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection . . . .” The protection afforded by Section
7 extends to employee efforts to improve terms and conditions
of employment or otherwise improve their lot as employees.
No one disputes that the health and safety of employees are
significant terms and conditions of employment. See American
National Can Co., 293 NLRB 901, 904 (1989). It follows that
when the CSOs discussed among themselves and with Officer
Scieszinski safety problems allegedly created by Officer Lopez,
Section 7 protected their discussions. The question is whether
their communications continued to be protected when they
presented their criticisms directly to Officer Lopez at the Lopez
Meeting.
In NLRB v. Robertson Industries, 560 F.2d 396, 398 (9th Cir.
1976),26 the court stated that for concerted activity to be pro-
tected, the activity: (1) must involve a work-related complaint
or grievance; (2) the activity must further some group interest;
(3) a specific remedy or result must be sought through the ac-
tivity; and (4) the activity must not be unlawful or otherwise
improper. The first three factors specified by the court are

25 It is unclear that Officers Winther and Ryan were impermissibly
absent from their posts during the Lopez Meeting. Officer Ryan was
assigned to Post 1 where the meeting was held, while Officer Winther
was assigned to a rover position, which, arguably, could legitimately
put him at the Post 1 area. The meeting was held in the windowed
control room at Post 1 from which the entrance to the Courthouse could
be monitored and where management meetings with CSOs were cus-
tomarily held. The Respondent bears the burden of proving misconduct.
The Respondent has adduced no evidence that it prohibited CSOs from
interacting with one another while on duty, particularly in the absence
of courthouse visitors as was the case the morning of the Lopez Meet-
ing, or that it considered even extended CSO interaction while on duty
to be misconduct. Strict adherence to post assignment does not appear
to have been a security absolute for the Respondent; as needed, Officer
Scieszinski gathered CSOs to Post 1 to discuss work issues and dis-
seminate employment information. The General Counsel does not raise,
and I do not consider, any theory that the period during which the Lo-
pez Meeting occurred constituted a protected work stoppage as con-
templated by NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).
26 Cited with approval by the Board in Northeast Beverage Corp.
349 NLRB 1166, 1167 fn. 9 (2007).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
clearly present in the arrangement and conduct of the Lopez
Meeting: (1) Officers Winther and Ryan organized, and Offi-
cers Winther, Ryan, Schierman, and Exley attended, the Lopez
Meeting to address their work-related concern that Officer Lo-
pez’ job performance presented a security risk to all CSOs; (2)
the presentation of coworker concerns to Officer Lopez fur-
thered the valid group interest in safety; and (3) the CSOs
hoped the confrontation would motivate Officer Lopez to
change his allegedly dangerous work habits. The remaining
question is whether the Lopez meeting and Officers Winther
and Ryan’s participation in it, was, in itself, unlawful or other-
wise improper.
Counsel for the General Counsel cites Jhirmack Enterprises,
283 NLRB 609 fn. 2 (1987), for the proposition that an em-
ployee engages in protected, concerted activity when he or she
advises a coworker of complaints about his job performance
when the performance affects others’ terms and conditions of
employment. In Jhirmack, the Board concluded an alleged
discriminatee engaged in protected concerted activity when,
motivated by a desire to protect a fellow employee’s employ-
ment, she advised a coworker that other employees had com-
plained to management about his slow job performance, which
performance affected certain of their employment conditions.
Jhirmack establishes that an employee is protected by the Act
in advising a coworker of job performance problems that affect
other workers.27 See also Cadbury Beverages, Inc., 324 NLRB
1213 (1997), enfd. Cadbury Beverages, Inc. v. NLRB, 333
U.S.App.D.C. 94, (D.C.Cir. 1998).
The Respondent argues that Officers Winther and Ryan’s
conduct was unprotected as (1) it violated explicit contractual
prohibitions; (2) the officers were not motivated by any valid,
work-related concern; (3) the Lopez Meeting was a manifesta-
tion of malicious hazing and harassment of Officer Lopez, and
(4) the officers’ conduct had the improper design of effecting
Officer Lopez’s removal from the Courthouse.
The Respondent contends that Officers Winther and Ryan
improperly failed to utilize internal complaint or union griev-
ance procedures to address their safety issues with Officer Lo-
pez’s work. I have found that the officers did, in fact, raise
their safety concerns with Officer Scieszinski without resolu-
tion, but even if they had not, employees engaged in protected
activity generally do not lose the protection of the Act simply
because their activity contravenes an employer's rules or poli-
cies. “[A]n employer may not interfere with an employee's

27 Jhirmack does not answer whether the General Counsel must
show a benign and helpful motive for the communication or simply
disprove employee misconduct in the delivery of it. Two of the Board’s
panel members in Jhirmack found the conduct was undertaken for the
mutual aid and protection of a fellow employee, noting that the em-
ployee complaints were prompted by employees’ concern that poor job
performance adversely affected their employment terms and that the
alleged discriminatee’s purpose in relaying the complaints was to en-
courage her coworker to take corrective action to protect his job. The
concurring Board member addressed the employer’s good-faith belief
that the alleged discriminatee had engaged in misconduct by, in part,
deliberately inflicting emotional harm on her coworker, but concluded
the General Counsel had proven the alleged discriminatee had not, in
fact, engaged in misconduct.
right to engage in Section 7 activity by requiring that the em-
ployee take all work-related concerns through a specific inter-
nal process.” Valley Hospital Medical Center, Inc., supra at
1254 (2007), and cases cited therein.28 As to the Respondent’s
argument that Officers Winther and Ryan were improperly
motivated in addressing safety complaints to Officer Lopez,
there is no evidence of malice or other inappropriate motiva-
tion. The evidence demonstrates that Officers Winther, Ryan,
Schierman, and Exley were concerned about perceived safety
blunders endangering them all.29 There is no evidence any
CSO bore personal animosity toward Officer Lopez. The fact
that Officer Ryan may have desired Officer Lopez’ removal if
Officer Lopez did not correct his alleged safety violations, does
not show an improper motive.30
Finally, the Respondent argues the Lopez Meeting was un-
protected as an act of harassment of Officer Lopez. The Board
has found that even when an employee is engaged in protected
activity, he or she may lose the protection of the Act by egre-
gious behavior, including displaying “an opprobrious or abu-
sive manner.” Verizon Wireless, 349 NLRB 640, 646 (2007).
Here, although Officers Winther, Ryan, Schierman, and
Exley may have presented some unpalatable criticisms to
Officer Lopez, there is no evidence their opinions were de-
livered in other than a civil and temperate manner. Al-
though Officer Lopez complained in his written statement to
the Respondent that he was “talked down to and basically
scolded [making him] feel harassed and mistreated…and
treated like a second class citizen,” he pointed to no offen-
sive, intimidating, or threatening behavior by the CSOs and
agreed that Officer Ryan said the object of the meeting was
to help him. Following the meeting, Officer Lopez thanked
the CSOs for their advice, which further weakens a harass-
ment accusation. Although an employer has a valid interest
in protecting its employees from coworker persecution,
“[l]egitimate managerial concerns to prevent harassment do not
justify...discipline on the basis of the subjective reactions of
others to [employees’] protected activity.” Consolidated Diesel
Co., 332 NLRB 1019, 1020 (2000). Accordingly, Officers
Winther and Ryan’s organization and conduct of the Lopez
Meeting did not lose the Act’s protection because of Officer
Lopez’ subjective reaction to the meeting.
The General Counsel has established that Officers Winther
and Ryan engaged in protected activity when they affected the
Lopez Meeting. The evidence further shows that neither officer

28 Moreover, Officer Scieszinski suggested the CSOs approach Offi-
cer Lopez directly with their complaints, and the Respondent cannot
now justifiably complain they did so.
29 It is irrelevant that the Respondent did not, apparently, concur
with the officers’ perception of Officer Lopez’ job performance. Pro-
tected activity does not depend upon the merit or lack of merit of the
grievance. Skrl Die Casting, Inc., 222, NLRB 85, 89 (1976).
30 The situation is analogous to cases in which employees seek the
removal of a supervisor. When the supervisor’s capability has a direct
impact on the employees' own job interests and the protest is motivated
by legitimate employee concerns, it is protected. See Trompler, Inc.,
335 NLRB 478, 479 (2001), which cites, inter alia, NLRB v. Leslie
Metal Arts Co., 509 F.2d 811 (6th Cir. 1975)
AKAL SECURITY, INC. 15
engaged in any misconduct that removed their activities from
the protections of the Act. It follows that adverse employment
consequences based on Officers Winther and Ryan’s protected
activity, even though grounded on a good faith albeit mistaken
belief that they engaged in misconduct in the course of their
protected activity, violates Section 8(a)(1) of the Act. See
NLRB v. Burnup & Sims, supra. The next question is whether
the Respondent can be held responsible for the adverse em-
ployment consequences, i.e. the Courthouse terminations, to
Officers Winther and Ryan.
In the Courthouse terminations of Officers Winther and
Ryan, the Respondent was the nonacting entity. The USMS,
over which the Board has no jurisdiction, prohibited Officers
Winther and Ryan’s continued employment at the Courthouse
by revoking their credentials. The Board has considered the
obligations of nonacting employers in fashioning remedies for
violations of the Act. In Federal Security, Inc.,31 the employer
of security guards provided to the Chicago Housing Authority
(CHA),32 misinformed the CHA as to the nature of a walkout
by the guards, with the result that participants were barred from
working at the CHA properties. The Board found that since the
employer’s erroneous report to the CHA led the CHA to bar
certain of the security guards from employment, the employer
”must bear the burden of fully remedying, so far as possible, its
unlawful conduct by attempting to have these names removed
from the bar list, in furtherance of its reinstatement obligation.”
Further, the employer would be required to make whole the
affected security guards, irrespective of whether the CHA
granted permission for their deployment on CHA properties.
The present case is analogous to Federal Security. By its May
2 investigative report to the USMS, the Respondent informed
the USMS that Officers Winther and Ryan had (1) “engaged in
a prohibited activity, an unauthorized meeting to critique the
job performance of [Officer Lopez], thereby creating a hostile
work place” in violation of Performance Standard #17; (2) har-
assed Officer Lopez in the work place; and (3) while subjecting
Officer Lopez to a “hostile work place,” created “a complete
breakdown of security.” The Respondent’s characterization of
Officers Winther and Ryan’s conduct as “prohibited activity”
that “creat[ed] a hostile work place” and caused “a complete
breakdown of security” was inaccurate. The Respondent
thereby misinformed the USMS of the nature of Officers Win-
ther and Ryan’s conduct. In the absence of evidence to the
contrary, it is reasonable to infer that the USMS based its revo-
cation of Officers Winther and Ryan’s credentials on the misin-
formation supplied by the Respondent.
The Board has noted that a successful request for termination
of an employee for discriminatory reasons violates the Act even
if made by an entity other than an employee's employer. Fur-
ther, an employing entity acquiescing in a discriminatory ter-
mination request is guilty of an unfair labor practice if it is
aware of the motive behind the request. See Capitol EMI Mu-

31 318 NLRB 413 (1995), enf. denied NLRB. v. Federal Security,
Inc., 154 F.3d 751 (7th Cir.) 1998) (the court found the walkout by
security guards unprotected.)
32 CHA was a governmental entity over which the Board had no ju-
risdiction.
sic, 311 NLRB 997 fn. 22 (1993), enfd. 23 F3d 399 (4th Cir.
1994), citing Flav-O-Rich, 309 NLRB 262, 265–266 (1992).
Here the Respondent itself supplied the USMS with an unlaw-
ful motive to revoke Officers Winther and Ryan’s credentials,
and there is no evidence the Respondent resisted the credential
revocations in any way. Accordingly, the Respondent is re-
sponsible for the adverse employment consequences flowing
from its investigative report to the USMS and for remedying
the unlawful employment actions taken against Officers Win-
ther and Ryan in violation of Section 8(a)(1) of the Act.
C. Alleged Threats to Employees for Speaking with
Agents of the NLRB
After the Charging Party filed unfair labor practice charges
against the Respondent on June 7, Officer Scieszinski threat-
ened the following employees as follows:
On June 26, told Officer Exley that if he spoke to the
NLRB agent he would be fired.
On July 2, told Officers Exley, Guzman, Schierman,
and Lopez they were not to talk to the NLRB agent or they
could be fired and told Officer Exley that the Respondent
would thereafter let employees know if they could say
anything.
On July 16, told Officers Exley, Guzman, Schierman,
and Lopez that the NLRB subpoenas they had received
were worthless and that although the CSOs could talk to
the NLRB agent, they could not divulge any operational
information, post orders, or anything about security proce-
dures, adding, “In other words, you really can’t say any-
thing.”
As a supervisor and/or agent of the Respondent, Officer Sci-
eszinski’s statements constitute threats, both explicit and im-
plied, to employees and restrain and coerce employees in the
exercise of their rights under the Act. See Management Con-
sulting, Inc. (MANCON), 249 NLRB 249, 250 (2007) and cases
cited therein.
The Respondent contends that Officer Scieszinski’s state-
ments were immediately and effectively repudiated by.
Mathews when, on July 19, Mr. Mathews told Officer Exley he
could talk to the Board agent about anything, as the company
wanted to be open about the NLRB issues. Mr. Mathews’
statement, addressed as it was only to Officer Exley, did not
adequately publish a repudiation of Officer Scieszinski’s threats
to the CSOs and did not clearly reflect assurances that the Re-
spondent would not thereafter interfere with the CSOs’ exercise
of Section 7 rights. See Sam’s Club, 322 NLRB 8, 9 (1996),
citing Passavant Memorial Area Hospital, 237 NLRB 138,
138–139 (1978). Accordingly, by Officer Scieszinski’s state-
ments detailed above, the Respondent violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. Akal Security, Inc. (the Respondent) is and has been at all
times material an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The United Government Security Officers of America,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Local 118 (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
(a) Terminating employees Lee Ryan and Stephen Winther
from their positions at the United States District Court for
Idaho located in Coeur d’ Alene, Idaho because they engaged in
protected concerted activity and/or to discourage other employ-
ees from engaging in protected concerted activity.
(b) Threatening employees with discharge or discipline if
they spoke to an agent of the National Labor Relations Board
and by directing employees not to speak to anyone regarding
discharges of employees.
4. The unfair labor practices set forth above affect com-
merce within the meaning of Sections 8(a)(1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that 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
policies of the Act.
The conclusion that the Respondent violated Section 8(a)(1)
of the Act by terminating Officers Winther and Ryan from their
CSO positions requires remedial action by the Respondent, the
normal provisions for which would include reinstatement and
backpay. Here, the Respondent need not offer Officers Winther
and Ryan reinstatement to their general employment with the
Respondent, as the Respondent never terminated them from
that employment. Meaningful reinstatement, however, means
that Officers Winther and Ryan must be returned to their for-
mer positions at the Courthouse, which the Respondent cannot
do unless the USMS rescinds its revocation of the officers’
credentials. Inasmuch as the USMS is not a charged party and
as the Board has no jurisdiction over the USMS in any event,
no Board order can avail against the USMS. It does not follow,
however, that Officers Winther and Ryan must suffer the con-
sequences of the Act’s violation without remedy.
The General Counsel proposes, in pertinent part, the following
remedy: (1) Respondent be required to seek USMS restoration of
Officers Winther and Ryan’s credentials; (2) Respondent make
Officers Winther and Ryan whole for all lost wages and benefits
from the time of their Courthouse terminations until reinstate-
ment, or, if the USMS bars reinstatement, then until they obtain
substantially equivalent employment elsewhere; and (3) remove
from its files and records any reference to Officers Winther and
Ryan’s Courthouse terminations. Only the General Counsel’s
second proposal requires further discussion. If, in response to
application by the Respondent, the USMS should refuse to re-
store Officers Winther and Ryan’s credentials, the proposed
make-whole remedy may require the Respondent to pay Officers
Winther and Ryan indefinitely the earnings they would have had
but for the Respondent’s unfair labor practices. Nevertheless, the
Board has ordered just such a remedy in a similar situation. See
Federal Security, Inc. at 414 and fn. 4, and the Respondent has
offered no persuasive argument why that remedy should not
attach here.33
Accordingly, the Respondent, having unlawfully terminated
Officers Winther and Ryan from their positions of employment
at the United States District Court for Idaho located in Coeur d’
Alene, Idaho must seek restoration by the United States Mar-
shals Service of Officers Winther and Ryan’s security creden-
tials and, if successful, offer Officers Winther and Ryan imme-
diate and full reinstatement to their positions of employment at
the Courthouse, or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges that would exist but for its
unlawful actions and make them whole for any loss of earnings
and other benefits, computed from the date of termination from
their positions of employment at the Courthouse to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Akal Security, Inc., Boise, Idaho, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating any employee from any assigned position
because the employee engaged in protected concerted activity
and/or to discourage other employees from engaging in pro-
tected concerted activity.
(b) Threatening any employee with discharge or discipline
if the employee speaks to an agent of the National Labor Rela-
tions Board.
(c) Directing any employee not to speak to others regarding
discharges of employees.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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, seek restora-
tion by the United States Marshals Service of Lee Ryan and
Steven Winther’s security credentials and, if successful, offer
Officers Winther and Ryan immediate and full reinstatement to
their positions of employment at the United States District
Court for Idaho located in Coeur d’ Alene, Idaho, or, if those
positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges that would exist but for its unlawful actions.
(b) Make Lee Ryan and Steven Winther whole, with inter-
est, for any loss of earnings or benefits suffered as a result of

33 The Respondent has provided no authority for its contention that
any remedy should be limited in accordance with the parties’ bargain-
ing agreement and H.K. Porter Co., Inc. v. NLRB, 397 U.S. 99 (1970).
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.
AKAL SECURITY, INC. 17
the discrimination against them in the manner set forth in the
remedy section of the decision.
(c) Remove from its files any reference to the unlawful ter-
minations of Lee Ryan and Steven Winther from the United
States District Court for Idaho located in Coeur d’ Alene, Idaho
and thereafter notify them in writing that this has been done and
that the unlawful actions will not be used against them 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-
cilities in Coeur d’ Alene and Boise, Idaho copies of the at-
tached notice marked “Appendix.”35 Copies of the notice, on
forms provided by the Regional Director for Region 19 after
being signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by 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 pro-
ceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-
spondent at any time since May 16, 2007.
(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
Respondent has taken to comply.
Dated: Washington, D.C. September 23, 2008
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

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.”
Choose not to engage in any of these protected activi-
ties
WE WILL NOT do anything that interferes with these rights.
More particularly,
WE WILL NOT terminate any employee because the employee
engaged in protected concerted activity and/or to discourage
other employees from engaging in protected concerted activity.
WE WILL NOT threaten any employee with discharge or disci-
pline if the employee speaks to an agent of the National Labor
Relations Board.
WE WILL NOT tell any employee not to speak to others about
discharges of employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights listed
above.
WE WILL seek to have the United States Marshals Service re-
store Lee Ryan and Steven Winther’s security credentials and,
if successful, offer Lee Ryan and Steven Winther immediate
and full reinstatement to their positions of employment at the
United States District Court for Idaho located in Coeur d’
Alene, Idaho, or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges that would exist but for our
unlawful actions.
WE WILL make Lee Ryan and Steven Winther whole, with in-
terest, for any loss of earnings or benefits suffered as a result of
our unlawful actions.
WE WILL remove from our files any reference to our unlawful
terminations of Lee Ryan and Steven Winther from their posi-
tions of employment at the United States District Court for
Idaho located in Coeur d’ Alene, Idaho, and WE WILL, within 3
days thereafter, notify them in writing that this has been done
and that the terminations will not be used against them in any
way.
AKAI SECURITY, INC.