Brink's, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 2014

360 N.L.R.B. 1206 (N.L.R.B. 2014)

1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 136
Brink’s, Inc. and Federation of Armored1 Car Work-
ers. Case 29–CA–097556
June 25, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On November 25, 2013, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The General Counsel filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.

1 We correct the spelling of the name of the Charging Party appear-
ing in the judge’s decision.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
3 We agree with the judge that the General Counsel failed to show
that the Respondent’s decision to discharge employee Marvin Francis
was motivated by his union activity, in part because there was insuffi-
cient evidence that the Respondent knew of Francis’s union activity
when it decided to discharge him. Wright Line, 251 NLRB 1083, 1089
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 399–403 (1983). In this case, the record
does not contain direct evidence of knowledge. Of course, the Board
may infer employer knowledge of an employee’s union activities based
on circumstantial evidence, including the employer’s demonstrated
knowledge of general union activity, the timing of the adverse action in
relation to the employee’s protected activity, the pretextual reasons for
the discharge asserted by the employer, and the employer’s demonstrat-
ed union animus. See, e.g., Kajima Engineering & Construction, Inc.,
331 NLRB 1604, 1604 (2000) (citing Greco & Haines, Inc., 306 NLRB
634 (1992)); see also NLRB v. Long Island Airport Limousine Service
Corp., 468 F.2d 292, 294–295 (2d Cir. 1972). We agree with the judge,
however, that no such inference is warranted here.
In adopting the judge’s dismissal of the complaint, we disavow the
judge’s statement in sec. II,F,2,c of her decision that because there is no
evidence establishing any independent violations of Sec. 8(a)(1), there
is no direct evidence of antiunion animus on the Respondent’s part. To
the contrary, it is well established that conduct that exhibits animus but
that is not independently alleged or found to violate the Act may never-
theless be used to shed light on the motive for other conduct that is
alleged to be unlawful. Kanawha Stone Co., 334 NLRB 235, 235 fn. 2
(2001) (citing Meritor Automotive, Inc., 328 NLRB 813, 813 fn. 4
(1999)) (disavowing judge's suggestion that because there is no evi-
dence establishing an independent violation of Sec. 8(a)(1), there can
be no direct evidence of antiunion animus). We also do not rely on the
statements in sec. II,F,3 of the judge’s decision that in order to find that
the Respondent’s stated reason for Francis’ termination was pretextual,
she would need to find a number of specific facts to be true. Finally,
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Mathew Jackson, Esq. and Kimberly Walters, Esq., for the
General Counsel.
J. Howard Daniel, Esq. and John T. Merrell, Esq., of Green-
ville, South Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Brooklyn, New York, on July 16, 17,
August 26, and September 10, 11, and 12, 2013. The Federa-
tion of Armored Car Workers (the Union) filed the charge on
January 18, 2013, and the Acting1 General Counsel issued the
complaint on April 11, 2013. An amendment to the complaint
issued on April 26, 2013.2
The complaint, as amended on April 26, 2013, alleges that
Brink’s Inc. (Respondent) suspended employee Marvin Francis
(Francis) on January 3, 2013, and then terminated Francis on
January 16, 2013, because he formed the Union and engaged in
concerted activities. The amended complaint further alleges
that since January 16, 2013, Respondent has unlawfully failed
to reinstate Francis or to offer him reinstatement to his former
job. Respondent filed a timely answer and amended answer.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following

the judge stated that former supervisor, Tracy Williams, did not know
about Francis’ union activity until January 3, 2013, Francis’ last day of
work before his suspension. Williams actually testified that she learned
of Francis’ union activity during his suspension, which would have
been sometime between January 3 and his discharge some 2 weeks
later. This error does not affect our decision. The record shows, and
the General Counsel does not dispute, that the Respondent decided to
terminate Francis on December 26, 2012, which would have been prior
to Williams’ learning of Francis’ union activity in either case.
Unlike his colleagues, Member Miscimarra agrees with the judge’s
statement that, absent evidence of any independent violations of Sec.
8(a)(1), there is no direct evidence of antiunion animus on the Re-
spondent’s part. In this regard, Member Miscimarra agrees with
Chairman Hurtgen’s separate opinion in Kanawha Stone Co., supra at
238 & fn. 8, which emphasized that employer statements are protected
by Sec. 8(c) and “shall not constitute or be evidence of any unfair labor
practice” if they neither threaten nor promise, but merely express a
preference that employees remain unrepresented. Additionally, Mem-
ber Miscimarra agrees with the judge’s statements that she would have
to make implausible findings to conclude that the Respondent’s stated
reason for discharging Francis was pretextual.
1 Although Acting General Counsel Lafe E. Soloman issued this
complaint, General Counsel Richard F. Griffin, Jr. was subsequently
confirmed and serves in this capacity as of the date of this decision.
Accordingly, the prosecuting entity of the Agency is herein referenced
as the General Counsel.
2 A second amendment to the complaint that was offered and re-
ceived on August 26, 2013, added remedy language that had been inad-
vertently omitted from the original complaint and the amended com-
plaint.
BRINK’S, INC. 1207
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with a main office and
place of business in Coppell, Texas, and an office and place of
business in Brooklyn, New York, has been engaged in the busi-
ness of providing cash management logistics solutions and
secure transportation services of cash and other valuables to
banks, retailers, and other commercial and government agen-
cies in the United States and abroad. During the year preceding
the issuance of the complaint, Respondent provided services in
excess of $50,000 to customers located outside the State of
New York. Respondent admits, and I find that Respondent is
an employer within the meaning of Section 2(2), (6), and (7) of
the National Labor Relations Act (the Act).
In its initial answer, Respondent denied that the Union is a
labor organization. By joint exhibit, however, Respondent
stipulated that the Union filed a representation petition on Janu-
ary 15, 2013, seeking to represent its full-time and part-time
security officers and employees. The representation election
was conducted on February 21, 2013, and a majority of votes
were not cast for the Union.3 The Regional Director for Region
29 of the National Labor Relations Board (the Board) issued a
certification of results of election on March 7, 2013. On the
first day of the hearing in this matter, Respondent amended its
answer to admit the Union’s labor organization status. Accord-
ingly, I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s management and corporate composition
Brink’s is the parent company for Brink’s Inc. (Respondent)
and Brink’s Global Services (BGS). For purposes of this pro-
ceeding, Respondent’s Brooklyn, New York facility and BGS’s
John F. Kennedy (JFK) Airport facility are the only relevant
facilities. Respondent’s Brooklyn facility is one of 23 branches
operating in the northeast region of the country and it is the site
of the alleged unfair labor practices. Respondent has a total of
approximately 7000 employees for its entire operation. During
the relevant time period, Michael Foreman (Foreman) served as
Respondent’s strategic market director for the Brooklyn facili-
ty. In that capacity, Foreman was responsible for all of Re-
spondent’s functions within the metro New York area, includ-
ing sales and operations. Foreman reported to Bill Vechiarella;
Respondent’s regional vice president for the northeastern mar-
ket. During the same time period, Garth Young (Young) re-
ported to Foreman and served as the senior manager for route
logistics. This area of responsibility is also referenced as Cash-
In-Transit or CIT; the department that facilitates the actual
pickup and delivery of cash and valuables that are also known
as liabilities. Bryan Rosenthal held the position of senior hu-
man resources director and he worked primarily at Respond-
ent’s Brooklyn facility.

3 Out of a total of 160 valid votes counted and unchallenged, 24
votes were cast for the Union.
Brink’s Global Services (BGS) is a global division and sub-
sidiary of the Brinks Company. BGS’s president is located in
London, England, and it has approximately 60,000 employees
who serve customers on a global level; often transporting for-
eign currency as well as other cash and valuables international-
ly. Tony Turrado is in charge of the BGS facility at JFK. The
CEO for the Brinks Company is responsible for managing both
Respondent and BGS.
2. Labor relations history
As referenced above, the Union sought to represent all of the
employees working as security officers and guards at Respond-
ent’s Brooklyn facility as well as employees working at BGS’
JFK facility. In elections that were held in February 2013, a
majority of eligible voters did not select the Union as their bar-
gaining representative. Employees working as mechanics at the
Brooklyn facility are represented by a labor organization and at
the time of the hearing in this matter, there was a collective-
bargaining agreement in existence covering these employees.
3. Respondent’s operation
The CIT function of Respondent’s operation involves the
physical transfer of cash, involving the United States Federal
Reserve, various banking institutions, and retail customers us-
ing armored trucks. The CIT department services automatic
teller machines (ATMs) and computerized safes known as
CompuSafes. Typically, there is a driver and a messenger in
each truck. If the truck is transporting more than $5 million,
there is a security regulation that mandates that the truck have
two messengers. The primary duty of the driver is to get the
truck safely to and from the facility to each stop. The main
messenger on each route is in charge of the route. The second
messenger on the truck is commonly referred to as a guard;
however, he performs the same basic messenger duties. There
are approximately 210 employees working at Respondent’s
Brooklyn facility and approximately 156 employees work as
drivers or messengers.
From its Brooklyn facility, Respondent services approxi-
mately 250 ATMs each day. When the messenger arrives at the
designated ATM and after deactivating the ATM’s alarm, the
messenger can obtain a receipt that documents the amount of
cash contained in the machine based on the transactions from
the previous servicing of the machine. The cash is contained in
separate cassettes based on the denomination of the bills. The
messenger removes the cash from the machine and seals it in a
bag with the corresponding receipt for transport back to the
facility. The messenger then loads the ATM with new cash and
resets the machine for operation. If the denomination of the
bills becomes mixed and placed in the wrong cassettes, the
error is termed a cross-load.
CompuSafes are electronic safes that are leased by Respond-
ent to retail customers to hold excess cash beyond the amount
of cash normally maintained in the customer’s cash register.
During the course of the day, the retail customer’s employees
log into the safe to deposit cash. At the end of the day, the safe
generates an email to Respondent and to the customer’s bank
documenting the amount of cash deposited into the safe on that
particular day. The bank then gives the customer generated
credit for the amount of the deposit. When Respondent’s mes-
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
senger services the safe, the messenger obtains a receipt from
the safe showing the amount of cash collected each day; includ-
ing a record of the specific denominations of the cash collected,
as well as, the time the cash was deposited in the machine. The
cash is maintained in the safe in two cassettes. The messenger
removes the cassettes containing the cash from the machine and
replaces them with empty cassettes. Each truck maintains emp-
ty cassettes for the messengers to use in servicing the Com-
puSafes.
When the trucks return to the facility from the assigned
route, the messenger gives all the cash and paperwork to the
vault clerk who validates everything picked up by the trucks.
The sealed bags and cassettes are moved to the cash room
where they are unlocked under camera, counted, and validated.
There are over 300 cameras in Respondent’s facility. A “vari-
ance” is the term used to describe the difference between the
amount shown on the receipts for the ATMs or safes and the
actual amount of money counted in the cash room. When a
variance is discovered in the cash room, a second count is con-
ducted in the presence of a supervisor. If there is still a differ-
ence between the receipts and the cash, the variance is reported
to the reconciliation department.
Jessica Rosario testified during the underlying proceeding
and she is one of three reconciliation clerks who deal with iden-
tified variances. The reconciliation clerks review various rec-
ords to determine whether there is a true loss. These records
include the SL1 forms completed by the messenger for each
stop on their route. The SL1 forms are contained in each bag of
cash the messenger is expected to load into an ATM. Based on
the receipts generated by the machine, the messenger uses the
form to record the amount of cash believed to have been re-
moved from a machine. The messenger servicing the machine
is identified on the SL1 form by a preprinted listing of the mes-
senger’s name or a handwritten listing of the messenger’s
name. In investigating a variance, the clerks also review the
guide sheets that are completed by the drivers for the route in
question. In addition to other information that must be com-
pleted about the particular route, the guide sheet identifies the
individuals who serve as the driver, messenger, and guard for
that specific route.
Foreman testified that a variance occurs when the records are
out of balance and a true loss is the amount that Respondent
must pay a customer for cash that is missing. Rosario testified
that when Respondent determines that a true shortage has oc-
curred, the reconciliation clerk contacts the customer, informs
management, and gathers all the relevant data related to the
loss. She testified that in investigating variances, she looks at
the crew composition on the day that the loss was discovered,
as well as, the crew composition on the previous date of service
for the machine in question. She explained that a messenger on
either crew could have caused the loss in issue. She also testi-
fied that when she reviews the SL1s in her investigation of a
loss, she cannot make any changes on the form to mark through
any messenger’s preprinted name or to add another employee’s
name to the form.
B. Marvin Francis’ Employment with Respondent
1. Francis’ employment history
Marvin Francis began working for Respondent in January
2008. Other than 2 to 3 days during 2012, he worked exclu-
sively at Respondent’s Brooklyn, New York facility. When he
began his employment, Francis worked as an ATM technician.
The ATM technicians are responsible for serving both the
ATMs, as well as CompuSafes. While Francis was waiting to
qualify to carry a weapon, he also worked as a driver for the
armored vehicle. Once Francis received his weapon and on or
about May 2008, Francis began working as an ATM messenger
for Respondent. As a messenger, Francis’ job was to transport
cash or currency to and from the Respondent’s facility to its
customers. During the remainder of Francis’ employment,
Francis occasionally worked as a driver if he were needed. He
estimated that on the average he served as a driver four times
during the month.
2. Francis’ daily duties as a messenger
Francis testified in detail concerning his normal routine as a
messenger. At the beginning of his shift, he checked to deter-
mine his assignment on the armored truck for that particular
day. If he were designated as the messenger, he retrieved what
he described as the “cage”; a unit that contains the cash to be
delivered, information about the route, and the paperwork asso-
ciated with that route. The paperwork includes a guide sheet, a
“D” sheet or delivery sheet, an “H” sheet, and a pick list. The
pick sheet contains information about the cash bags; including
the quantity of cash and the bag seal number. The delivery
sheet will show the priority for servicing the customers. When
the messenger is at the customer’s site, the customer will sign
the delivery sheet to show their receipt of the cash or “liabili-
ties” delivered by the messenger. The “H” sheet reflects liabili-
ties that are to be held over for delivery to a certain date or time
for a customer. The purpose of the D and H sheets is to record
all items picked up during the route and returned to the branch.
When the crew returns to the branch, the messenger gives the D
and H sheets to a vault clerk, who verifies that each item rec-
orded on the D and H sheets has been returned to the branch.
Young testified that Respondent’s standard procedure is for the
messenger to fill out the D sheet while the crew is at the cus-
tomer’s location.
One of the more significant documents discussed by various
witnesses in the trial is the guide sheet. This document con-
tains specific information about the employees assigned to a
particular route and about their route schedule. Francis testified
that the driver usually completes the guide sheet by listing the
employees who are designated as messenger, driver, and sec-
ond messenger/guard. Francis testified that the guide sheet
accurately describes who is on the route. The guide sheet con-
tains a section to record the beginning and ending mileage for
the truck and the time that the truck leaves and returns to the
Brooklyn facility. The customers’ names, addresses, and tele-
phone numbers are preprinted on the guide sheet, in addition to
any specific guide notes for specific customers. A typical guide
note would direct the employees on the truck to contact the
customer 10 minutes in advance of arrival. The guide sheet
BRINK’S, INC. 1209
shows the time that the messenger clocks in and out, as well as
when the route crew arrive and leave the customer’s location.
All of the cash that is to be taken from the facility to the var-
ious customers will be maintained in the cage. Francis testified
that the cash is in individual plastic bags that are labeled for
each customer. The cash is also stored in bags and each bag is
sealed with the customer’s name, location, and the amount.
The messenger is responsible for checking off the cash listed on
the pick sheet and then putting the cash into the truck. After
removing the cash from the cage, the messenger must also veri-
fy that he has the correct keys needed to open each customer’s
safe or equipment. Francis explained that each route has radi-
os, customer keys, and truck keys that are kept in a pouch and
maintained in the cage. After loading the truck, the messenger
gives the guide sheet to the driver who will complete a portion
of the guide sheet. Once the messenger again verifies the keys
necessary for the deliveries, the truck can leave the facility for
the designated route.
At one time the trucks were staffed with a messenger, guard,
and driver, however, at an undetermined date in 2011 or 2012,
the guard position was eliminated and Respondent began
scheduling two messengers rather than a guard and a messen-
ger. One of the messengers is designated as the lead messenger
for that route.
3. Francis’ involvement with the 2011 loss
In July 2011, Respondent received notice of a $31,000 vari-
ance from Hess, one of Respondent’s customers. The customer
reported that their records showed that Respondent’s employees
picked up $31,000 from their CompuSafe; however, there was
no record that it was credited to Hess’ account.
As referenced above, the CompuSafe is a computer operated
safe that is leased by Respondent to some of its retail custom-
ers. When the customer deposits money into the safe, the cash
is secured and recorded. At the end of the business day, the
safe sends Respondent and the customer a report concerning the
amount of money deposited and the customer’s bank will give
the customer credit based on the money deposited into the safe.
When the safe’s cassettes are full, Respondent sends a crew to
remove the cassettes and replace them with empty cassettes.
On July 16, 2011, Hess contacted Respondent to report that
one of its safes was full and would not accept any more cash.
Hess requested an unscheduled pick up of the cash in the ma-
chine. Marvin Francis was contacted on route 901 and instruct-
ed to make the emergency pickup. The guide sheet for July 16,
2011, shows that the Hess pickup was handwritten at the bot-
tom of the form, showing the arrival and departure times for the
stop as 12:20 and 12:27 p.m. respectively. The form also
showed that one item was picked up during the stop. Francis’
name is handwritten at the top of the form showing him to be
the messenger on the route. Foreman testified that when ques-
tioned about the variance, Francis did not deny that he was the
messenger on the route that day.
Messengers returning to the facility submit a form identified
as a holdover sheet to the vault clerk documenting the items
from the route customers that were either brought back to the
facility or taken from the customer’s facility to a third location
such as a bank or financial institution. The form is preprinted
with the pickup and delivery locations. Foreman testified that it
is the messenger’s responsibility to complete the form and
submit it to the vault clerk upon return to the facility. The vault
clerk then validates the information contained on the form. The
holdover form for July 16, 2011, contains the preprinted route
stops for route number 901; however, the Hess emergency stop
was not added to the form. Young testified that he spoke with
Francis about the omission of the stop on what is identified as a
“D” sheet. Young testified that Francis told him that he had
forgotten to complete all the paperwork on the stop.
There is no dispute that Francis made the Hess pick up and
that he did not complete the documentation showing that he
was returning approximately $31,000 from Hess to the facility.
Francis testified that he made the pick up at Hess and returned
to the branch facility at approximately 5 p.m. He remained at
the facility for about 1-1/2 hours checking off the items that he
brought back to the facility. At approximately 6:30 p.m., a
supervisor asked him to go out for another pickup. Francis
went out for the additional pickup and left the liabilities on the
truck from the route containing the Hess pick up. Foreman
testified that because there are always empty cassettes on the
trucks, the vault clerk would not have known to look on the
truck for the Hess deposit if the messenger did not log the
pickup on the proper forms.
Respondent did not learn that the Hess cassettes were miss-
ing until Hess contacted Respondent to report that their account
needed to be credited for the money removed from the safe on
July 16. When questioned, Francis acknowledged that he had
forgotten to record the pickup of the Hess CompuSafe on the D
and H sheets while he was on the run. Foreman asked Michael
Buckley; Respondent’s security manager for the Northeast to
investigate the $31,000 variance. Prior to working for Re-
spondent, Michael Buckley was a special agent with the Feder-
al Bureau of Investigation (FBI) for 32 years. His work with
the FBI primarily involved criminal investigations, organized
crime, and bank robberies. As the regional security manager
for Respondent, Buckley is responsible for investigating inter-
nal and external losses and promoting the safety of the facili-
ties. Buckley’s geographic area of responsibility includes the
northeast region; which includes not only the Brooklyn facility,
but also 22 other branch facilities in the northeast. Buckley
estimated that he conducts hundreds of investigations for Re-
spondent each year.
Buckley reviewed the documentation, spoke with manage-
ment, reviewed video footage, and conducted a series of inter-
views. At the conclusion of his investigation he was not able to
determine what actually happened to the missing money. He
could only conclude that the money was left on the truck and
never checked in with the vault clerk. He recommended to
Foreman that the money was lost because of carelessness.
Based on Buckley’s report, Foreman made the decision to
terminate Francis. Foreman testified that he directed the human
resources department to draft a letter of termination for Francis
with an effective date of termination of September 9, 2011.
The letter was drafted and signed by Senior Operations Manag-
er Garth Young. Before the letter issued however, Young ap-
pealed to Foreman to give Francis a second chance rather than
terminating him. Young told Foreman that because the compa-
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ny had primarily determined that the missing cash was due to
an error rather than theft, he wanted to give Francis another
chance. Foreman agreed and Francis was not terminated for the
July 16, 2011 loss.
Young later talked with Francis and told him that a decision
had been made to terminate him; however, he was not going to
follow through with the termination. Yong told Francis that he
had put his ass on the line for him. Francis testified that he
understood what Young meant when he said this and he under-
stood that Young had saved his job.
4. Francis’ work on the casino route
One of the routes on which Francis worked was route 14, or
the “Casino Route.” This route serviced ATMs at one location;
the Resorts World Casino in New York. The ATMs are owned
by Global Cash Access; one of Respondent’s customers. Fran-
cis testified that when he worked the casino route, he normally
worked with employees Anthony Maysonet (Maysonet), Jerry
Lewis (Lewis), Chrispolo Olivera (Olivera), and Ruben
Corchado (Corchado). There are usually 24 to 30 ATM ma-
chines that are serviced on this route.
On a general route, the driver stays with the truck and serves
as a guard, while the messengers are outside the truck. The
casino route was set up by Young and Foreman to specifically
serve the casino customers. Young testified that the casino
wanted Respondent to service the ATMs in such a way that
would not disturb their business and that weapons wouldn’t be
exposed to the general public. The route crew typically starts
the route very early in the morning and the crew will call the
casino security checkpoint before arriving. Unlike other cus-
tomers, the casino can provide a secure place for the truck to be
parked and the driver does not have to remain with the truck for
security. The casino security guard accompanies Respondent’s
employees at all times while they are in the casino. At the cus-
tomer’s instructions, the crew takes the cash obtained from the
ATMs and delivers it directly to Bank of America.
Before servicing the casino ATMs, the messengers verify
that they have the correct cash bags for the specific ATM ter-
minals. The bags are labeled with the total amount of cash, as
well as, the specific denominations of the enclosed bills. The
messenger is able to gain entry to the ATM terminal by using a
designated settlement card and specific keys for the terminal.
The messengers use a very detailed process for documenting
the amount of cash that is contained in the ATM at the time of
the messenger’s entry to the machine, as well as the amount of
cash that is retrieved from the machine and then added to the
machine. The messenger does this by a series of receipts ob-
tained at the various steps of the process. During the time that
the messenger services the machine, the driver is present and
stands guard. The casino’s security guard is also present. If
there is a second messenger on the route, he will assist the lead
messenger. Young testified that because the driver is with the
messengers at the casino ATMs, he will complete the paper-
work at the machine. He may also break off the straps for the
cash and pass it to the messenger.
For each ATM that is serviced on a route, there is a separate
SL1 form. Two days in advance of the run, the form is pre-
printed with the date, the ATM identification number, the run
number, the address of the ATM, and often the name of the
driver and the messenger who is expected to be assigned to that
particular run. The form is actually printed, however, before
the actual route assignment is made for a particular day. Francis
testified that at the time the ATM is serviced, the messenger
will write his name if it is not already on the form. If another
messenger’s name is on the form, the messenger will cross that
name out and write his own name. The messenger uses the SL1
to document the cash received from the machine and the cash
added to the machine, as well as, the appropriate seal numbers.
When the cash is returned to the facility, the cash amount is
verified and documented by the employees in the cash pro-
cessing department.
C. Respondent’s Basis for Terminating Francis
1. Background
Foreman testified that when Hurricane Sandy hit the New
York area on or about October 30, 2012, Respondent’s opera-
tions were changed. He explained that the storm was an ex-
tremely stressful time on the city as well as on Respondent’s
employees and customers. He recalled that Respondent had not
even known where some of its employees were during the
storm and its aftermath. Employees who might otherwise have
been able to come to work had difficulty finding gas to get to
work and Respondent purchased two 250-gallon gas tanks in
order to distribute gas each day to its employees. Respondent
flew in 19 people from its operations across the country as a
response team to run the day-to-day operations. Foreman re-
called that although he only lived 2 miles from the facility, he
stayed in the dispatch office of the facility night and day for 4
days during the storm period. Foreman testified that for the
entire month of November, Respondent’s total focus was to
service, deliver, process, or pack cash to get it out to its cus-
tomers.
2. Respondent’s response to the variances
BAMS is the acronym for Respondent’s computer system
that tracks all of the ATMs serviced by Respondent. The sys-
tem keeps a record of all cash added or removed from the ma-
chines, as well as, the denominations of the cash. The system
also reports any overages or shortages. Each morning, BAMS
sends a daily email to designated individuals identifying any
variances over $500 that have been identified by the system.
On December 6, 2012, the BAMS system generated an email
identifying all of the open variances that exceeded $500. In
addition to being sent to Garth Young, the email was sent to
reconciliation clerks Jessica Rosario and Trisha Cameau. The
email also went to Scott Kaliski, who was an ATM manager
who had been brought into the facility during the aftermath of
the storm to assist with the operation of the facility. Tracy
Williams; the manager of route logistics also received a copy of
the email. as well as Michael Foreman. Upon receiving the
email, Foreman replied to Rosario, Cameau, and Young telling
them, “I need to understand what is a true shortage.” Foreman
testified that he knew that Respondent’s operation was behind
because of the hurricane and he didn’t want to carry any losses
or variances into the next business year. Three days later, Ro-
sario responded by email listing the variances and identifying
BRINK’S, INC. 1211
those variances that had been closed and those that continued as
a “true” variance. Thirteen open losses remained; seven relat-
ing to Global Cash Access, four for TD Bank, one for First
Republic Bank, and one for Citibank.
On December 18, 2012, Respondent’s regional controller for
the northeast; Bryan Henry; sent an email to Respondent’s vice
president of operations for the northeast, Bill Vechiarella. Hen-
ry also copied various directors throughout the northeast opera-
tions, including Foreman. Henry reported that there were 122
open preliminary loss reports (PLRs) with a value of
$395,583.62. He added, “Please review. Any open PLRs as of
12/31/12 will be accrued.” Foeman testified that the Compa-
ny’s goal at the end of the year is for all directors to identify
which claims are true losses and to pay those losses before
going into the next calendar year. After he received the email
from Henry, Foreman sent an email to Young, Rosario, and
Cameau with the following directive: “Garth, We need your
focus in ATM claims ASAP.” Later that same day Vachiarella
responded to Henry’s email by an email to the various direc-
tors. Vachiarella responded: “TEAM, this is nuts. No way can
we accrue this. We need these resolved.”
Foreman testified that when he reviewed the report that Ro-
sario sent him on December 9, 2012, he noticed that there were
some very large variances for Global Cash Access that amount-
ed to almost $40,000 and that he considered such losses to be
substantial. He asked Rosario to put together a chart so that he
could understand the losses occurring at the casino. Rosario
testified that when Foreman asked him to prepare the spread-
sheet concerning the casino losses, he did not ask her to focus
on any particular messenger. Using the folders that she main-
tains concerning ongoing losses, Rosario prepared a spread-
sheet for the losses related to Global Cash Access. The spread-
sheet included details concerning six losses that occurred be-
tween March 2 and November 16, 2012. Four of the losses
amounting to $27,400, identified Francis as the messenger re-
sponsible for the route on the date of the loss or on the day
prior to the loss. Two of the losses totaling $19,500 that are
identified on the spreadsheet reflected that Francis was the
messenger on both the day of the loss and on the day prior to
the loss.
On December 26, 2012, Foreman sent a copy of the spread-
sheet to Senior Human Resources Director Bryan Rosenthal
and to Vechiarella. Foreman pointed out that on September 7,
2012, Francis cross-loaded $100 bills in a $20-bill cassette,
resulting in a shortage of $15,520. Foreman added that Francis
was the same messenger who had lost a CompuSafe deposit the
previous year causing a loss of $31,000. Foreman stated that
based on the shortages at the casino, the cross-load, Francis’
past losses, and his being late several days with an attitude of “I
don’t care if I’m late,” he had lost confidence in Francis’ ability
to perform his job. Foreman also added that Francis had been
on vacation all week and there had been no shortages. Foreman
directed Rosenthal to prepare a termination letter to be given to
Francis when he returned from his vacation. Foreman copied
Regional Security Manager Michael Buckley in his email to
Rosenthal.
3. Buckley’s investigation of the losses
Buckley testified that he had been scheduled to come to the
Brooklyn facility in early January 2013 to address a report of a
possible armed attack on one of Respondent’s trucks. When
Buckley read Foreman’s email of December 26, 2012, that
discussed the losses and Francis’ involvement, he responded by
offering to assist in the investigation. On December 28, 2012,
Buckley sent an email to Foreman and Rosenthal telling them
that he wanted to weigh in on Foreman’s December 26, 2012
email and to relay some facts of past history concerning Fran-
cis. Buckley told them that he had read the various emails and
he offered his assistance in the investigation. He told them that
he would like to review the history of the casino shortages and
thereafter interview the messengers involved, particularly Fran-
cis. He went on to explain that he had interviewed Francis in
the past concerning the July 2011 loss. He explained that after
his 2011 extensive video review and his interviews, he had not
been able to determine if Francis had stolen or not stolen the
missing cash. On the same day, Vechiarella responded to
Buckley’s email and asked if Respondent could suspend Fran-
cis pending investigation. Rosenthal responded that Francis
could be removed from the schedule until Buckley could inter-
view him.
Buckley recalled that the first day that he had been at the
Brooklyn facility in January 2013; he spent all day investigat-
ing the matter of the possible armed attack. He told Foreman
that before he could begin any interviews concerning the casino
losses, he needed to review all the documentation on the inves-
tigation. He told Foreman that if the documentation could be
collected, he could review it before interviewing Francis on
January 3.
Francis had been on vacation since December 17 and he ex-
pected to return to work on December 31. He testified that
although he attempted to reach the dispatch office on December
30 and 31, 2012, no one answered the telephone. Because one
of the offices known as the Tarot office usually has the work
schedule for the following workday, he also telephoned the
Tarot office to ask about when he was scheduled to return to
work. He was told that he was not on the schedule. After an-
other unsuccessful call to the dispatch office on January 2, he
telephoned Supervisor Tracy Williams and asked about the date
that he was next scheduled to work. She suggested that he
come to the facility during scheduled working hours. Francis
testified that he reported to the facility at 6:30 a.m. on January
3 and found that he was scheduled for a special assignment at
10 a.m.
When Buckley arrived at the facility, he discovered that
Francis had arrived at the facility early in the morning and he
had been waiting since that time. Even though he didn’t have
all the documentation that he would have preferred, Buckley
decided to go ahead and talk with Francis rather than having
Francis wait longer. Using a copy of the spreadsheet prepared
by Rosario, Buckley interviewed Francis. Buckley recalled that
when he talked with Francis about the various losses listed on
the spreadsheet, Francis asked why he was being questioned
about these losses when no one had ever mentioned them to
him before. Buckley recalled that Francis also told him that he
(Francis) had previously initiated a conversation with reconcili-
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ation clerk Cameau about the casino losses. Francis asserted to
Buckley that Cameau told him that she had already reviewed all
of the variances and they had balanced out and that he should
not worry about them. Buckley testified that Francis told him
that Cameau had assured him that there were no issues with the
Global Cash ATMs. After meeting with Buckley, Francis tele-
phoned the Union’s attorney and told him about his meeting
with Buckley.
After speaking with Francis, Buckley interviewed Cameau
and asked about her conversation with Francis concerning the
Global ATMs. Cameau told Buckley that she recalled speaking
with Francis about the Global ATM losses, but she denied that
she ever told him that there were no issues with the losses.
Cameau told Buckley that she had told Francis that she didn’t
usually handle the Global ATM shortages and that Rosario
usually handled those shortages. Buckley testified that he also
spoke with Rosario on January 3. Rosario told him that she had
spoken with Francis and employee Ruben Corchado concerning
the issue of the cross-load on their route.
Young testified that he had spoken with Francis and all the
messengers about the casino losses in 2012 because the losses
were frequent and significant. Young described Francis’ re-
sponse as “a little nonchalant to say the least.” Buckley also
spoke with Young on January 3. Buckley testified that Young
told him that he had spoken with Francis many times about the
losses. Buckley further recalled that Young mentioned that
when he had spoken with Francis, Francis had a nonchalant
attitude about the issues discussed.
At 6:09 p.m. on January 3, Buckley sent an email to Rosen-
thal, Vechiarella, and Foreman concerning his investigation of
the ATM shortages. He confirmed that he had spoken with
Francis, Cameau, Rosario, and Young and he recounted the
information provided by each individual. Buckley also added
that his other contacts that day contradicted the information
given to him by Francis that morning. Buckley further noted
that he felt that Francis was being misleading and evasive dur-
ing the interview. Buckley added that he was providing the
information for whatever action that was deemed appropriate.
4. The Union’s letter
At 7:35 p.m. on January 3, 2013, David I. Cann (Cann); the
Union’s attorney, faxed a letter to Respondent’s Brooklyn facil-
ity. The letter was addressed to Foreman and informed him
that his law firm represented the Union. Cann stated that the
Union was engaged in an organizing campaign at several of
Respondent’s facilities in the New York metropolitan area.
Cann included in the letter that employees Frank Esammason,
Al White, Marvin Francis, and Frank Cangemi had formed a
committee for the purpose of organizing a labor union and en-
gaging in collective bargaining. Cann further stated in the letter
that any retaliation against Francis or any members of the
committee was prohibited by law and would result in charges
with the National Labor Relations Board.
Buckley returned to his office in Boston on January 4, 2013.
Buckley noted in his records that he spoke with Foreman at
approximately 5:30 p.m. on January 4. Foreman told him that
after Buckley had left the facility the previous day, Foreman
had received a faxed letter from an attorney representing the
Union and advising Respondent to stop harassing certain indi-
viduals. Francis was named as one of the individuals listed in
the letter. Buckley testified that this was the first time that he
had heard that Francis was involved with the Union. In his
notes, Buckley documented that he told Foreman that during
his conversation with Francis on January 3, neither the word
“union” nor any other activity concerning union campaigns was
ever mentioned.
5. Respondent’s decision to terminate Francis
Buckley recalled that he returned to the Brooklyn facility
sometime between January 10 and 15. Over the course of sev-
eral days, Buckley reviewed all the paperwork concerning the
losses and he also spoke at length with Rosario. He testified
that he did so because he didn’t consider himself an expert in
understanding the ATM documentation and he needed Rosario
to explain the ATM operation. Rosario explained to him that
the preprinted SL1s are not always accurate and often the as-
signments are changed after the forms are printed. Buckley
testified that after his research, he concluded that Francis was
the common denominator in the loss issues. He said that based
on that conclusion, as well as on Francis’ lack of candor and
misleading comments on January 3, he concluded that Francis
was not being truthful. He told Foreman that he didn’t see how
Respondent could have confidence in Francis in his continued
functions at Respondent’s facility. Foreman testified that based
on Buckley’s investigation, he decided to terminate Francis.
Foreman denied that he had any knowledge of Francis’ in-
volvement with the Union prior to getting the faxed letter on
the evening of January 3.
By letter dated January 16, 2013, Foreman notified Francis
of his termination. In the letter, Foreman told Francis that he
had been the messenger responsible for an ATM cross-load
which had resulted in a loss over $13,000. Foreman also ex-
plained that there were three other ATM shortages in 2012 for a
total loss of over $10,000 occurring from machines that Francis
was assigned. Foreman stated that as a result of these findings,
he had lost confidence in Francis’ ability to discharge the duties
of his position in a manner consistent with the level of perfor-
mance, proficiency, and care expected by Brink’s.
6. Rosario’s spreadsheet and the losses associated
with Francis
a. The June 1, 2012 loss
One of the losses shown on Rosario’s chart was a June 1,
2012 loss for $2900 at Global Cash Access for ATM 22
(x022nyrw). The SL1 for this ATM for May 28, 2012, shows
Olivera and Maysonet’s names preprinted as the driver and the
messenger respectively. The guide sheet for May 28, 2012, for
the casino route contains the handwritten names of the employ-
ees who serviced the route. Maysonet is written into the space
for the messenger, the name Olivera is written into the space
for the driver, and Francis is the name written into the line des-
ignating the guard. Because the guard serves as a second mes-
senger, Rosario testified that either Maysonet or Francis could
have serviced the ATM on May 28. Francis testified that he did
not complete any of the information that is included on the May
28, 2012 guide sheet.
BRINK’S, INC. 1213
The SL1 for this same ATM for June 1, 2012, shows that Ol-
ivera’s name is preprinted as the driver and Maysonet’s name is
preprinted as the messenger. Maysonet’s name, however, is
marked through and Francis’ name is handwritten on the form.
Francis testified that he did not write his name in the section
identifying him as the messenger and he does not know who
did so. He contends that he did not complete anything con-
tained on the SL1 for June 1, 2012. The SL1 also reflects that
the lead messenger documented a shortage for the ATM of
$2900. The guide sheet for June 1, 2012, contains the hand-
written names for the messenger, driver, and guard for route 14.
The name of the messenger is handwritten as Jerry L. This
individual is identified in the record as Jerry Lewis. The driver
is designated as Olivera, and the guard is designated as Francis.
Francis denies that he serviced Global ATM X022NY on May
28, 2012, or on June 1, 2012.
Francis denies that he wrote anything on the guide sheet or
SL1 for either May 28 or June 1 and he denies that he was on
the route either day. The guide sheet for May 28 reflects, how-
ever, that Francis was the second messenger and both the SL1
and the guide sheet for June 1 reflect that Francis was a mes-
senger on the route. Rosario testified that when she prepared
the spreadsheet on casino losses for Foreman, she listed Francis
as the messenger on the date of the loss and noted that either
Francis or Maysonet was the messenger on the day before the
loss was discovered.
b. The September 7, 2012 loss
The largest of the losses included on Rosario’s spreadsheet
was a loss of $15,520 at ATM 12 (x012nyrw) on September 7,
2012. Rosario testified that the loss resulted when $100 notes
were erroneously loaded into a $20 cassette, causing the ma-
chine to over dispense to customers. Global Cash Access de-
manded a reimbursement of $13,000 because of the cross-load.
Rosario testified that when a cross-load occurs, she looks to the
crew that serviced the ATM on the date prior to the loss be-
cause that would have been the crew who made the error in
loading the cash into the ATM.
The SL1 for Global ATM 12 for September 3, 2012, con-
tains the names of the driver and messenger preprinted on the
form. Olivera’s name is preprinted as the driver and May-
sonet’s name is preprinted as the messenger. The guide sheet
for route 14 on September 3, 2012, shows the handwritten
names of the messenger, driver, and guard. Francis is shown as
the messenger, Jamal B. is handwritten as the driver, and Kevin
Gordon (Gordon) is shown as the guard. Rosario testified that
even though Maysonet’s name had been preprinted on the SL1
for September 3, 2012, the guide sheet reflects that Maysonet
did not service the ATM on September 3. Francis testified that
because he was familiar with the location of the ATMs on this
route, he took charge as the lead messenger and that he took
responsibility for servicing the upper part of the machine and
Kevin Gordon serviced the bottom half; including servicing the
cash for the machine. Francis denied that he ever handled the
cash that was removed or put into the Global ATM 12 on Sep-
tember 3, 2012. Francis admitted, however, that he did not
know whether Gordon was qualified to service the ATMs. He
also admitted that neither Gordon nor Jamal usually worked the
casino route.
The SL1 for ATM 12 for September 7, 2012, contains the
preprinted name for the driver and messenger. Olivera’s name
is preprinted as the driver and Maysonet’s name is preprinted as
the messenger. Maysonet’s name, however, is marked through
and Francis’ name is handwritten in the space designating the
messenger. Francis denies that he wrote his name on the SL1
or that he completed any portion of the SL1 for September 7.
Furthermore, he denies that he serviced this particular ATM on
that date.
Rosario testified that when she prepared the spreadsheet she
listed Francis as the messenger on both the date of the loss and
the date before the loss. She explained that she did so because
she relied on the guide sheet as the more accurate document for
the date before the loss. She also relied on the fact that the SL1
form for the day of the loss reflected that Maysonet’s name had
been marked through and Francis’ name was handwritten in
substitution for Maysonet’s preprinted name.
c. The October 8, 2012 loss
Global Cash Access reported a shortage of $3980 for a loss
that occurred between October 5 and 9, 2012, for ATM 12
(x012nyrw) and demanded reimburse. The SL1 for this ATM
for October 5, 2012, contains the preprinted names of the driver
as Olivera and the preprinted name of Maysonet as the messen-
ger. Maysonet’s name, however, is marked through and Fran-
cis’ name is handwritten in the section designating the messen-
ger. Rosario concluded that because Francis’ name was hand-
written on the SL1, Francis was the person who physically
loaded the ATM on that date. Francis denies that he wrote his
name on this document or that he completed any portion of the
document. Furthermore, Francis denies that he serviced Global
ATM 12 on October 5, 2012. The guide sheet for October 5,
2012, for route 14 contains the handwritten names for the mes-
senger, driver, and guard. Francis is shown as the messenger,
Olivera and Francis are both listed as the driver, and D. Natal is
listed as the guard. Francis recalls that he completed the guide
sheet for October 5, 2012. He testified that he listed both he
and Olivera as drivers because he drove part of the route. Fran-
cis was asked to compare the guide sheet for October 5 and the
SL1 for ATM 12 for October 5, 2012, and to clarify who was
the messenger who serviced the ATM. Francis asserted that he
did not service the ATM because his name on the SL1 was not
his handwriting. Francis further asserted that a driver never
handles the cash, and thus Natal must have been the messenger
who handled the cash and serviced the ATM. Rosario testified
that when she compared the writing on the SL1 and the guide
sheet for October 5, she concluded that Francis was the mes-
senger.
The SL1 for ATM12 for October 8, 2012, contains the pre-
printed names of Olivera as the driver and Maysonet as the
messenger. The document also reflects that the messenger
documented a shortage of $3980 when the ATM was serviced.
Francis denies that he serviced this ATM on October 8. The
guide sheet for October 8 shows Maysonet as the messenger
and Corchado as the guard. Robinson is shown as the driver.
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
d. The November 16, 2012 loss
The SL1 for Global ATM 18 (xo18nyrw) for November 12,
2012, contains the preprinted names of Olivera as the driver
and Maysonet as the messenger. Maysonet’s name, however, is
marked through and Francis name is handwritten into the space
designated for the messenger. Francis acknowledges that he
wrote his own name as messenger on this form and he was the
individual who serviced the ATM.
The SL1 for ATM 18 for November 16, 2012, contains the
preprinted name of Olivera as the driver and Maysonet as the
messenger. Maysonet’s name is marked through and Corcha-
do’s name is handwritten into the space designated as the mes-
senger. The form also reflects that the messenger documented
a shortage of $4660 at the time the ATM was serviced. Francis
denied that he serviced the ATM on November 16, 2012.
Based on her review of the documents, Rosario determined that
Francis was the messenger responsible for servicing the ATM
in question on the date prior to the date of the $4660 variance.
D. Francis’ Involvement with the Union
1. Frank Esammason’s role with the Union
Frank Esammason (Esammason) was first employed with
Respondent in October 1994 where he worked at Respondent’s
Brooklyn facility. In 2006, he transferred to BGS’ JFK Airport
facility. Esammason currently works as a messenger/carrier.
In 2012 and during the early part of 2013, Esammason’s job
required him to stop at the Brooklyn facility approximately 5
days a week. He picked up money or valuables that were to be
transported to the JFK facility. He usually arrived at the
Brooklyn facility between 5 and 5:30 p.m. and he spent no
more than 10 to 15 minutes at the facility.
Esammason and fellow BGS employee Al White were the
employees of BGS who created the Union. Esammason testi-
fied that first began thinking about starting a union in June
2012 and he shared his ideas with White in July 2012.
Esammason recalled that he attended a meeting at the JFK fa-
cility in September 2012 that was conducted by JFK Branch
Manager Tony Turrado. He also recalled that the regional or
general manager for BGS and a regional human resource man-
ager for BGS were present at the meeting. He could recall only
that their first names were Dominic and Lesley. He recalled
that Dominic introduced himself as Turrado’s superior. Em-
ployee complaints and issues were discussed during the meet-
ing. Dominic also mentioned that there were rumors about
union organizing at the facility. Esammason asserts that he told
Dominic that employees were looking into organizing a union
because of the employee complaints and issues involving wag-
es and pensions. In response to Esammason’s statement, Dom-
inic stated that employees had the right to do so. He also re-
called that Lesley stated that she dealt with different unions in
her job and she also said that the employees had a right to or-
ganize. Esammason recalled that Turrado had simply listened
and did not have anything in particular to add.
Esammason testified that in late November or early Decem-
ber, he went to the Brooklyn facility with White and other co-
workers and tried to speak with Respondent’s employees out-
side the entrance gate. He estimated that they did so between 5
and 7 a.m. Esammason recalled that on one occasion when he
was standing outside the gate, he saw Foreman and Human
Resource Manager Brian Rosenthal. Rosenthal approached
him and asked how he was doing. He also told Esammason
that he could not block the gate. Esammason told him that he
was not blocking the gate and Rosenthal said nothing further.
Esammason asserts that he continued to distribute union litera-
ture after the exchange. Esammason testified that Francis
joined him in the parking lot approximately an hour after the
conversation with Rosenthal. Esammason did not testify as to
how long Francis remained in the parking lot or whether any
other management officials were present during the time that
Francis came to the parking lot. Esammason asserts that he
continued to distribute union literature in the parking lot outside
the Brooklyn facility twice a week until the February 2013
election.
Esammason testified that he first began talking with Francis
about the Union in June or July 2012. He estimated that within
2 weeks of first talking with White about the Union, he spoke
with Francis every day and that he saw Francis at the Brooklyn
facility two to three times a week. Francis, however, testified
that he first began talking with Esammason about the Union in
September and October of 2012. Francis testified that they not
only spoke by telephone and text, but that they also met in per-
son at a restaurant in Queens New York. Employee Al White,
another employee at the JFK facility, and Attorney David Cann
were also present during some of the meetings at the restaurant.
Francis recalled that there were a total of three or four of these
meetings that occurred during a period of time between October
and December 2012. Francis also recalled that another em-
ployee of the Brooklyn facility also attended. He did not speci-
fy how many meetings that this employee attended and he
could only recall that his first name is Frank.
Francis testified that he usually saw Esammason approxi-
mately once a week when Esammason came to the Brooklyn
facility to make deliveries. He recalled that when he spoke
with Esammason, he did so while on the platform as well as in
the restroom. The platform is the area where the trucks back in
for loading or unloading. During the morning hours, supervi-
sors and messengers are the individuals who are primarily on
the platform. Messengers and night loaders are the individuals
who are primarily on the platform during the afternoons. Secu-
rity cameras are located directly above the platform. Francis
asserted that each time he saw him, Esammason asked about
the status of the organizing. He recalled that when he spoke
with Esammason on the platform, he only spoke for 1 to 3
minutes and simply greeted him and exchanged a few words.
Francis also testified that he first saw Esammason distrib-
uting union flyers on 10th Street outside the facility and near
the parking lot “in or around October.” Francis asserted that
between October and December, he helped Esammason distrib-
ute union flyers in this area three to five times. Francis testified
that there were times when he did this in the morning between
6 and 8 a.m. and other times after work and between 5:30 to
7:30 p.m. On cross-examination, Francis admitted that he did
not recall the dates when he distributed union literature and that
his earlier testimony had been only an estimate as to how many
times he had distributed union literature. He acknowledged
BRINK’S, INC. 1215
that he had no recall of any specific dates other than January
17, 2013, and after his suspension.
Francis asserted that before he began talking with Esamma-
son about the Union, he seldom saw Young outside on the plat-
form area in the afternoon. He acknowledged, however, that
Young’s office and the platform are on the same level and that
there is a window in Young’s office giving a view of the plat-
form. He asserted that in October 2012 and while he was on
the platform talking with Esammason one afternoon, Young
told him to stop socializing and go ahead and check off his
route and go home. Francis also recalled that there were other
times when he spoke with Esammason on the platform and
Young stopped and asked Francis and Esammason if they
needed any help with anything. Francis further asserted there
were occasions when Young stared at him from a distance of 25
to 30 feet. Francis testified that he saw Young look at him in
this way every time that Esammason came to the facility.
Francis also testified that before there was any discussion about
the Union, he had been friends with Young. He asserted that
after he became involved with the Union, Young no longer
offered him a ride home from work and that Young looked at
him differently.
Francis testified that even before there was any discussion of
the Union, he had been friends with Esammason and that he
occasionally spoke with Esammason when he visited the
Brooklyn facility. Francis also asserted that before he began
having discussions with Esammason about the Union, he never
saw Forman on the platform in the afternoons. Francis asserted
that after he began talking with Esammason about the Union,
Forman’s presence “was very evident.” He estimated that after
he began talking with Esammason about the Union, he ob-
served either Forman or Young on the platform each afternoon.
Esammason also testified that after his meeting with Turrado in
September 2012, he observed Foreman on the platform more
often than before. Esammason testified, however, that Foreman
was never close enough to overhear any conversations that he
had with Francis.
2. Francis’ contact with other employees
Francis testified that he began talking with other employees
about the Union in September or October 2012. He did not
give any specific names, but asserted that he talked about the
Union with truckers, night loaders, as well as, employees in the
cash processing department. He testified that he did so on the
platform, as well as in the breakroom, the parking lot, and the
locker room. He recalled that he approached employees indi-
vidually and primarily after working hours. He estimated that
spoke with a total of approximately 80 employees.
Esammason testified that he first gave Francis union authori-
zation cards to distribute in mid-October and that Francis re-
turned the signed cards to him within a week to 2 weeks.
Esammason asserted that after he gave the union cards to Fran-
cis, he saw Foreman more frequently when he visited the
Brooklyn facility. Francis, however, testified that Esammason
first gave him union cards to distribute in November 2012 and
he began immediately distributing the cards to employees.
Francis acknowledged that in the affidavit given to the Board,
he testified that Esammason gave him approximately 100 union
cards on November 30, 2012. Francis’ union authorization card
is dated December 1, 2012; however, he did not sign the card
on December 1. He asserted that he did not immediately sign a
card and that Esammason reminded him in a meeting that he
had not as yet signed a card. Francis testified that he wrote
December 1, 2012, on the card because he estimated that this is
the date that he “should” have signed the card.
Francis testified that he gave union cards to employees in the
gym and on the platform; areas that were covered by the facility
cameras. He also recalled that he gave employees union cards
in the male locker room, the breakroom, and the parking lot.
Francis testified that the Tarot office at the facility contains the
live feed from cameras filming areas in the parking lot, the
front of the building, the lobby area, the locker room, and the
computer room. Respondent stipulated that Forman has been in
and out of the Tarot office every day since he worked at the
Brooklyn facility and particularly during the month of Novem-
ber. Respondent further stipulated that after Hurricane Sandy,
Forman was in the Tarot office virtually every hour because of
the effects of the hurricane on the facility.
Francis testified that he collected approximately 50 union au-
thorization cards from other employees over a period of ap-
proximately 2 months between October and December. He
recalled that on December 15, 2012, employee Tameka Grant
saw him talking with another employee about signing a union
card. During the conversation, some of the union cards fell to
the floor. Francis testified that Grant picked up one of the cards
and he pulled it from her hand. He recalled that Grant told him,
“Ooh, I’m telling. You’re going to get in trouble.” Francis
testified that he had picked up the cards that had fallen and he
made his way to the bathroom with his “heart pounding.”
Francis asserts that at the time of this conversation, Grant
worked as Young’s assistant during the week and as a dispatch-
er on Saturday’s. Francis testified that her work area was near
to Young’s and he believed that they were friends.
Francis was on vacation from December 17until December
31, 2012. Francis testified that twice during this period, he
went to the Brooklyn facility with Esammason and stood out-
side the facility and handed out union materials to individuals
coming to work. He estimated that they did so between 6 and 7
to 7:30 a.m. Esammason recalled, however, that in late No-
vember or early December Francis assisted him in contacting
employees outside the facility and during the morning between
5 and 7 a.m. Esammason estimated that prior to the filing of
the petition, Francis assisted him in the parking lot at least
twice a week.
3. Tracy Williams’ testimony concerning the losses
Tracy Williams (Williams) first began working for Respond-
ent in March 2000 as a processing teller in the currency room.
She progressed to the position of assistant supervisor and then
to the position of cash room supervisor. In December 2011,
Williams transferred to the CIT department where she worked
as a route logistics manager. Williams testified that she was the
immediate supervisor for 16 employees and assisted with the
management of 40 to 42 employees over the course of a work-
day.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Williams was terminated from her employment in May 2013.
She was told that she was terminated because Respondent had
lost confidence in her ability to perform her job and to resolve
employee conflicts. Williams contended, however, that she
believed that she was terminated because of a disagreement
with employee Tamika Grant; who was a friend of Young.
Williams testified that in December 2012, she became aware
that Respondent was looking into shortages that were attributed
to Francis. Jessica Rosario asked Williams to help her look for
SL1 forms that reflected shortages associated with Francis.
Williams testified that she understood that they were looking
for the forms because a casino customer had a large variance.
Williams testified that although Rosario had found some of the
documents relating to Francis and the losses, she (Williams)
found an additional four documents on her own. She recalled
that the losses associated with Francis were “pretty large” as
well as other smaller amounts. Williams also recalled that as
they were sorting out the SL1s associated with the shortages,
“the amount [they] kept accruing.”
4. Williams’ testimony concerning Francis’ union activity
Williams testified that she first began hearing rumors about
union organizing in October and she also heard rumors that
BGS employees Esammason and White were involved with the
organizing. Williams began attending daily managers’ meet-
ings in October 2012. She recalled that in November there
were daily discussions about the Union during the managers’
meetings.
Williams testified that on an unspecified date in January, and
after Francis’ suspension, she happened to see Francis outside
the facility at approximately 5 a.m. She saw him standing by
the gate entrance with another man but she didn’t know what he
was doing. She recalled that she made a comment to Young,
“Wow, that’s a bold move. The guy is actually forming a union
against the company.” Young responded, “Yeah, I know.
Francis has a lot of nerve doing something like that after every-
thing I’ve done for him.”
When Williams was asked on direct examination when she
first heard about Francis’ connection to the Union, she testified
that it had been the end of November or December. She
acknowledged, however, that in the sworn affidavit given dur-
ing the Board’s investigation, she testified that she did not offi-
cially learn of Francis’ involvement with the Union until after
his discharge. She explained that by “official” she did not hear
any mention of Francis’ union activity from Forman or Young
until after Francis’ discharge. She admitted that she had no
knowledge of Francis’ union activity before his discharge.
E. Respondent’s Discipline of Other Employees
Respondent asserts that its termination of Francis is con-
sistent with its past practice in terminating other employees for
similar reasons. In October 2010, Respondent terminated R.
Mendoza because of a repeated loss of liability. Respondent
determined that Mendoza was the messenger responsible for
the safekeeping and security of three customer shipments on
August 27, September 8 and 15, 2010, which all resulted in
shortages for a total of $14,860. In January 2011, Respondent
terminated the employment of A. Serrano after an investigation
that showed that Serrano was the messenger responsible for a
high number of ATM shortages during the 2010 calendar year.
In April 2012, Respondent terminated J. Diaz after he was iden-
tified as the messenger responsible for a series of customer
claims and losses. Buckley testified that he was involved in the
investigations involving both Mendoza and Serrano and he
made recommendations to Foreman concerning his investiga-
tion. He also recalled that during the course of his investiga-
tion, he reviewed spreadsheets containing information on losses
similar to those he reviewed in January 2013.
Records introduced during the hearing also reflect that on
February 11, 2010, Respondent terminated employee P. Gallar-
do for ATM cash shortages totaling $2751 and on January 13,
2012, Respondent terminated employee C. Thomas for shortag-
es totaling $3960.
F. Analysis and Discussion
1. Legal authority
Counsel for the General Counsel asserts that Respondent
terminated Marvin Francis because of his activities in support
of the Union. Respondent contends, however, that because
Francis was associated with various and specific losses, it lost
confidence in his ability to perform his job and therefore he was
terminated. Respondent asserts that it had no knowledge that
Francis was involved in union activity before a decision was
made to terminate him. Because the Respondent’s motive is an
integral factor in determining the lawfulness of Francis’ dis-
charge, it is necessary to use what has come to be known as a
Wright Line4 analysis. The Wright Line analysis is based on the
legal principle that an employer’s motivation must be estab-
lished as a precondition to finding an 8(a)(3) violation. Ameri-
can Gardens Management Co., 338 NLRB 644, 645 (2002). In
its decision in Wright Line, the Board stated that it would first
require the General Counsel to make an initial “showing suffi-
cient to support the inference that protected conduct was a ‘mo-
tivating factor’ in the employer’s decision.” Wright Line,
above at 1089.
Under Wright Line, the General Counsel must establish cer-
tain elements by a preponderance of the evidence. The General
Counsel must show the existence of activity protected by the
Act and that the respondent was aware that the employee had
engaged in such protected activity. In addition to showing that
the employee in question suffered an adverse employment ac-
tion, there must be some showing that the employer bore ani-
mus toward the employee’s protected activity. Praxair Distri-
bution, 357 NLRB 1048, 1048 fn. 2 (2011); Camaco Lorain
Mfg. Plant, 356 NLRB 1182, 1185 (2011). Specifically, the
General Counsel must show that the protected activities were a
substantial or motivating factor in the decision to take the ad-
verse employment action. North Hills Office Services, 346
NLRB 1099, 1100 (2006). In effect, proving the established
elements of the Wright Line analysis creates a presumption that
the adverse employment action violated the Act. To rebut such
a presumption, the respondent must persuade by a preponder-
ance of the evidence that the same action would have taken

4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st. Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983).
BRINK’S, INC. 1217
place even in the absence of the protected activity. Manno
Electric, 321 NLRB 278, 281 (1996). If the evidence establish-
es that the reasons given for the discipline are pretextual, either
in that they are false or not relied on, the employer has failed to
show that it would have taken the same action absent the pro-
tected conduct, and there is no need to perform the second part
of the Wright Line analysis. Golden State Foods Corp., 340
NLRB 382 (2003); Limestone Apparel Corp., 255 NLRB 722
(1981). Furthermore, an employer cannot carry its Wright Line
burden by showing that it had a legitimate reason for the action,
but must “persuade” that the action would have taken place
even absent the protected conduct. Centre Property Manage-
ment, 277 NLRB 1376 (1985); Roure Betrand Dupont, Inc.,
271 NLRB 443 (1984).
2. Analysis of the Wright Line components
a. Whether Francis engaged in union activity
There is no dispute that Francis signed a union authorization
card that is dated December 1, 2012, authorizing the Union to
represent him for the purposes of collective bargaining to im-
prove wages, benefits, and working conditions. Francis also
asserts that he collected union authorization cards from other
employees and that he assisted Esammason in distributing un-
ion materials to employees outside Respondent’s facility.
Clearly, by signing the union authorization card, Francis en-
gaged in an activity in support of the Union and in an activity
that is protected by Section 7 of the Act. Although no employ-
ees were submitted to support his assertions, I also credit his
testimony that he talked with other employees about signing
cards. In this respect, he also engaged in union activity. As
discussed below, however, Francis’ alleged open solicitation of
support for the Union outside the Respondent’s facility and his
alleged visible assistance to Esammason is not as clear from the
record evidence as the General Counsel maintains.
b. Whether Respondent knew of Francis’ union activity
prior to January 3, 2013
On January 3, 2013, the Union’s attorney faxed a letter to
Respondent, notifying Respondent that Francis was involved in
organizational activities. Clearly, as of this date, Respondent
was on notice that Francis was engaged in protected activity
and Respondent’s actions thereafter would bear the scrutiny
beyond the second prong of the Wright Line analysis. The
General Counsel asserts, however, that even prior to January 3,
2013, Respondent would have known that Francis was engaged
in union activity. As outlined in my discussion below, I am not
convinced that Respondent would have known about Francis’
union activity prior to January 3, 2013.
There is no doubt that even prior to January 3, 2013, Re-
spondent was probably aware that Esammason was involved in
organizing for the Union. Esammason testified that as early as
September 2012, he informed management at the BGS JFK
facility that he was looking into organizing a union. Although
Respondent may have known that Esammason was involved in
union organizing, the evidence is not as clear with respect to
Francis. There is no dispute that even before he became in-
volved in the union organizing, Esammason’s job took him to
the Brooklyn facility approximately 5 days a week. Admitted-
ly, his contact with the Brooklyn branch employees during
these visits was limited to no longer than 10 to 15 minutes.
There is no evidence that this practice changed after he began
union organizing. Although Francis and Esammason contends
that they saw Foreman and Young more often on the docks in
the late afternoon after Esammason became involved in the
Union, there is no evidence that Esammason spoke more with
Francis than with other employees when he was there for the
brief period of 10 to 15 minutes or that Foreman or Young
overheard any comments that were exchanged between
Esammason and Francis. Francis testified that when he and
Esammason spoke, they only did so for 1 to 3 minutes and there
was only a brief exchange of words.
Esammason testified that in late November or early Decem-
ber, he and Al White went to Respondent’s Brooklyn facility
and tried to talk with employees outside the facility gate during
the early morning hours. He estimated that they did so approx-
imately twice a week until the election in February 2013. He
recalled that on one occasion, Rosenthal saw him and told him
that he could not block the gate. Rosenthal did not dispute that
he had this conversation with Esammason. This is the only
conversation that is alleged to have occurred between Esamma-
son and any of the management officials of the Brooklyn facili-
ty with regard to his union activity. Esammason also testified
that approximately an hour after he had the conversation with
Rosenthal, Francis came out to the parking lot and joined him.
There is no evidence that Rosenthal or any other management
official observed Francis in doing so. Initially Francis estimat-
ed that between October and December, he distributed union
materials outside the gate of Respondent’s facility two to five
times. He later testified, however, that he did know when he
first distributed union materials outside the facility. He testi-
fied that the only date that he knew with certainty was January
17, 2013, and after his discharge. Esammason testified that
Francis assisted him in distributing union literature outside the
facility approximately twice a week until after the election.
Based on the conflicting testimony between Esammason and
Francis and the lack of corroborating evidence, I do not find
Esammason’s testimony to be credible with respect to Francis’
alleged assistance to Esammason in distributing union litera-
ture. Based on the record as a whole, it is more likely that
Esammason exaggerated the extent to which Francis attempted
to assist him in organizing efforts.
Both Esammason and Francis testified concerning the time
period when the Brooklyn employees were solicited to sign
union authorization cards and the extent to which Francis was
involved in that solicitation. Esammason testified that he first
gave Francis union cards to distribute in mid-October and that
Francis returned the cards to him within 2 weeks. Francis, how-
ever, initially testified that he collected 50 union cards from
employees between October and December 2012. In direct
contrast to Esammason’s testimony, Francis later testified that
Esammason gave him the union cards in November 2012. In
the affidavit given by Francis to the Board during the investiga-
tion, Francis testified that Esammason gave him 100 union
cards to distribute on November 30, 2012. Francis finally testi-
fied that he could not recall the time period when he began
distributing union cards.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is no dispute that Francis dated his own union authori-
zation card with a December 1, 2012 date. During cross-
examination, Respondent’s counsel asked Francis why he
signed his own card on December 1 and yet he asserted that he
had solicited others to sign cards in October 2012. Francis
contended that his signing the card with a date of December 1
was only after Esammason reminded him that he had not signed
a card as yet. Francis asserted that he put the December 1,
2012 date on the card because he was estimating that this was
the date that he “should” have signed the card. Francis does not
deny that he signed the union card sometime after December 1,
2012. Esammason denied, however, that he ever suggested to
Francis that he should backdate the card to a date earlier than
when he signed it. Thus, Francis contends that he solicited
employees to sign union cards as early as October and yet he
acknowledges that he did not receive the union authorization
cards from Esammason until November 30, 2012, and that he
did not sign his own union card until sometime after December
1, 2012. Furthermore, Esammason’s testimony that Francis
returned 50 signed cards to Esammason during the latter 2
weeks of October is directly contradicted by Francis. Ironical-
ly, Respondent subpoenaed the Union’s signed authorization
cards during the course of this proceeding and the General
Counsel opposed the production. After hearing the parties’
arguments, I granted the General Counsel’s motion to quash the
subpoena and therefore there is no documentary evidence to
substantiate when the employees signed union cards. Further-
more, there is no evidence to support either Esammason’s tes-
timony or Francis’ testimony or to credibly establish when
Francis actually signed his own union card or when he solicited
others to do so.
In the posthearing brief, the General Counsel acknowledges
that there are discrepancies between Francis and Esammason
concerning the dates on which they engaged in certain union
activity. The General Counsel asserts, however, that such dif-
ferences are minor and that their testimony was consistent on
critical issues. Contrary to the General Counsel’s assertion,
however, I find the differences far more significant. In order to
effectively argue that the Respondent would have reasonably
known about Francis’ union activity prior to January 3, 2013,
the evidence must demonstrate that Francis was actively in-
volved in union activity prior to that date. Esammason asserts
that Francis solicited and collected union authorization cards
during the last 2 weeks in October while Francis contends that
he did not receive any union cards until November 30, 2012.
Francis never identified when he actually signed his own union
card. He simply asserts that he backdated the card to December
1, 2012, because he thought that was the date that he “should”
have signed it. Thus, based on the testimony of Francis and
Esammason, there is no clear evidence to show when Francis
solicited employees to sign union cards or when he assisted
Esammason in distributing union materials. January 17, 2013,
is the only date that Francis can recall with certainty as a date
when he distributed union materials to employees outside the
facility. In light of the conflicting testimony of Francis and
Esammason, there is in fact no credible evidence to actually
demonstrate that Francis signed a union card prior to the Un-
ion’s letter of January 3.
As discussed above, Francis estimated that he assisted
Esammason in distributing union materials outside the facility
two to five times during the period between October and De-
cember 2012. Esammason testified that Francis helped him
distribute union literature twice a week in the parking lot and
that he did so until the election. Francis also testified that on
December 15, 2012, employee Tameka Grant saw him talking
with another employee about signing a union card. Francis
asserts that during the conversation, he accidentally dropped the
cards and Grant picked up one of the cards and commented on
the fact that it was a union card. Francis testified that because
Grant sometimes worked as Young’s assistant, he had been
nervous that Grant had seen him with the cards. He recalled
that when he was able to collect the cards that he had dropped,
he immediately headed for the bathroom with his heart pound-
ing. I note, however, that his testimony concerning his nerv-
ousness about Grant seeing the union cards conflicts with his
assertion that he openly distributed union materials to employ-
ees during the period from October to December. If he had
actively and openly distributed the union materials as he and
Esammason asserts, it should not have been a matter of concern
on December 15, 2012, that an employee might tell Young that
he was handing out union authorization cards.
In asserting that Respondent had knowledge of Francis’ un-
ion activity prior to January 3, 2013, the General Counsel also
relies on Francis’ testimony concerning his conversation with
fellow employee Ruben Corchado. Francis testified that on an
unspecified date, he approached Corchado about signing a un-
ion authorization card. Corchado told Francis that he didn’t
believe that a union was going to work and he declined the
card. Following his conversation with Corchado, Francis went
to Young’s office to get a new pair of pants because his uni-
form pants had ripped. The new pair of pants that Young gave
him did not fit and he had to ask for another pair of pants from
Young. In the interim of trying on the pants, Francis observed
Corchado speaking with Young. He did not overhear their
conversation. When Francis asked Young for the second pair
of pants, Young tossed them to him rather than handing them to
Francis. After trying on the second pair of pants, Francis ap-
proached Corchado and said, “You told them, didn’t you?”
Corchado just laughed and said that he did not know what
Francis was talking about. Francis testified that Corchado nev-
er said anything further. Young denied that Corchado or any
other employee ever told him that Francis was involved in un-
ion organizing. Although Francis apparently believed that
Corchado talked with Young about his solicitation to sign the
union card, there is nothing more than Francis’ speculation to
support this assertion.
The record evidence that puts Respondent’s knowledge most
in question was presented through the testimony of Tracy Wil-
liams, a former supervisor who was presented by the General
Counsel. After having served as a member of Respondent’s
management team, Williams was terminated in May 2013.
Based on her testimony, it is apparent that she does not believe
that her termination was justified. Williams testified that she
first began hearing rumors about union organizing as early as
October 2012. She testified that during November 2012, there
were daily discussions about the Union during the management
BRINK’S, INC. 1219
meetings that she attended. It is reasonable that management
would have had these discussions at that time as Esammason
had already proclaimed his union organizational activities to
the management officials at the JFK facility and he may have
been soliciting employees outside Respondent’s premises.
Although Williams initially testified that she learned of
Francis’ union activity “around December” she later admitted
that in a sworn affidavit to the Board she had testified that she
had heard about Francis’ connection to the Union only after she
sent Francis’ resume in for a new position as a tech in January.
Thus, in her sworn affidavit to the Board during the investiga-
tion, as well as in her sworn testimony at the hearing, Williams
admitted that she had not known that Francis was involved with
the union organizing until after his discharge. She testified that
she had not heard any mention of Francis’ union activity from
either Foreman or Young. I find Williams’ testimony to be far
more credible than Francis and Esammason in this regard and
to credibly contradict their testimony concerning the timing of
Francis’ assistance to Esammason in distributing union litera-
ture outside Respondent’s facility.
Based on her testimony, it is apparent that Williams believed
that her termination was not justified. A terminated employee
having this opinion might not normally feel any obligation of
loyalty to his or her former employer. It is reasonable that she
might have welcomed the opportunity to present testimony
adverse to the Respondent’s position. The fact that her testi-
mony supports the Respondent’s position gives her testimony
more credibility. If management officials discussed the union
organizing each day in their management meetings during the
months after October 2012, it is plausible that they would have
also discussed any employees who were thought to be involved
in the organizing. If Francis’ name was not mentioned, it is
most likely because he was not known to be associated with the
organizing effort. Thus, Williams’ testimony supports a find-
ing that Respondent was not aware of Francis’ support for the
Union prior to January 3, 2013.
Accordingly, I do not doubt that Francis believes that he en-
gaged in activities in support of the Union’s organizing efforts.
At some undetermined point in time, he signed a card and he
demonstrated his support for the Union outside the facility on
January 17, 2013, after his suspension. The record demon-
strates, however, that prior to January 3, 2013, Francis was not
an open and visible supporter of the Union. There is simply a
lack of credible evidence to show that Foreman knew about
Francis’ support for the Union when he notified management
on December 26, 2012, that he wanted to terminate Francis for
the associated losses. Furthermore, there is no evidence that
Foreman or other management officials knew about Francis’
union activity when Foreman asked Rosario to prepare the
spreadsheet on the casino losses in followup to her earlier email
outlining the true variances for him on December 9, 2012.
c. Whether Respondent demonstrated the requisite
animus to meet the Wright Line analysis
There is no evidence establishing any independent violations
of Section 8(a)(1) of the Act; thus there is no direct evidence of
animus. Accordingly, to make a finding of animus, I must infer
animus from the circumstances surrounding the treatment of
Francis. Under the framework of Wright Line, the burden of
proof rests with the General Counsel to establish animus. In
New Otani Hotel & Garden, 325 NLRB 928 fn. 2 (1998), the
Board noted that an inference of unlawful motivation may be
“drawn from evidence of blatantly disparate treatment.” The
Board has also found that in the absence of direct evidence,
animus may be inferred from the record as a whole. Fluor
Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976 F.2d 744
(11th Cir. 1992).
While Board precedent allows a finding of animus to rest on
indirect evidence in appropriate cases such as Montgomery
Ward & Co., 316 NLRB 1248, 1253 (1995), there are also
Board decisions that have shown instances when drawing such
an inference is inappropriate. An example may be found in the
Board’s decision in J. O. Mory, Inc., 326 NLRB 604 (1998). In
that case, the Board reversed a judge’s finding of unlawful
motivation based upon on an instance in which the respondent
employer departed from its customary, and facially valid, hiring
practices.
The General Counsel asserts that the timing of the investiga-
tion of the casino losses and Francis’ involvement with the
losses is suspect as it occurs during the period of Francis’ al-
leged union activity. The total record, however, shows that
during December and the last month of the calendar year, the
BAMS system generated a report showing the existing vari-
ances at the Brooklyn facility. Foreman followed up by asking
Rosario to determine the true variances and losses. Within 12
days, Respondent’s regional controller also alerted Respond-
ent’s directors in the northeast region that there were 122 PLRS
with a value of $395,583.62 and that any losses remaining as of
December 31 would be accrued; which would have resulted in
Respondent’s absorption of the losses for the year. In response
to Foreman’s directive, Rosario prepared a spreadsheet identi-
fying the messengers who were associated with the Global
Cash Access losses. The results reflected that Francis was as-
sociated with four of the six losses. While it is coincidental that
Respondent’s investigation of these losses occurred at a time
when Francis alleges to have been actively involved in union
organizational efforts, the coincidence raises only a suspicion.
As the Board has long recognized, “mere suspicion cannot
substitute for proof” of unlawful motivation. Frierson Bldg.
Supply Co., 328 NLRB 1023, 1024 (1999); Lasell Junior Col-
lege, 230 NLRB 1076 fn. 1 (1977).
The General Counsel asserts that the timing of Francis’ ter-
mination, coming months after the incidents for which he was
allegedly disciplined further establishes animus and unlawful
motive. Respondent contends that any lag in time between the
losses in question and Francis’ eventual termination was justifi-
able in light of customer practices and the operational difficul-
ties the Brooklyn branch experienced as a result of Hurricane
Sandy. Rosario testified that after a loss at a Global ATM,
Global typically takes 4 to 6 months to try to recoup any funds
from customers that were overpaid. Respondent also submitted
various letters and correspondence with Global to show that the
joint attempt to resolve variances often covered a scan of
months before final resolution. Rosario further testified that
her work was also delayed by a month because of the hurri-
cane’s disruption of the Brooklyn operation.
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although Respondent considered Francis’ involvement in a
loss that occurred as early as June 2012, there were also losses
in October, and November; losses that occurred just prior to the
disruption of the storm and in the aftermath of the storm. More
significantly, however, the record reflects that Respondent’s
focus on the losses in early December 2012 was triggered by
the automated BAMS report, the informational email from
Respondent’s regional controller, and perhaps more importantly
the directive from Respondent’s vice president of operations.
Thus, because of the extenuating circumstances of the storm
and the end of the year analysis of losses, I don’t find suspi-
cious timing in Respondent’s attention to losses in December
2012.
The General Counsel also asserts that animus may be shown
when Rosenthal asked Esammason to not block the entrance to
the facility on one single occasion. While the General Counsel
argues that this was a thinly disguised effort to intimidate
Esammason and to disrupt his organizing activity at the Brook-
lyn branch, this statement is the only statement that is alleged to
have been made to Esammason by Rosenthal or any other man-
agement official of Respondent. Esammason asserts that he
continued to hand out union literature until the date of the elec-
tion and there is no evidence that he was prevented from doing
so.
The General Counsel also submits that Respondent’s animus
is evidenced by the fact that Respondent conducted a campaign
in response to the Union’s organizing efforts. Although Tracy
Williams testified that Respondent conducted “speak out”
meetings with employees prior to the election, she did not at-
tend the meetings. Esammason testified that after the petition
was filed, BGS conducted meetings with employees to give
their opinion on the Union. He recalled that BGS told the em-
ployees that the Union was just a startup union and was not a
reputable union. He also recalled that BGS management told
employees that the law firm representing the Union also dealt
with the transit authority workers who had been involved in a
May 2006. There is no evidence that either BGS or Respond-
ent made any statements to employees during their respective
election campaigns that are alleged to be independent violations
of the Act. While I have no doubt that Respondent conducted a
vigorous campaign to counteract the Union’s organizing ef-
forts, there is no evidence that Respondent engaged in aggres-
sive and unlawful conduct that would constitute the level of
animosity that is alleged by the General Counsel.
Francis did not testify that any management official made
any statement to him that related to the Union or involved any
animus toward the Union. Tracy Williams is the only witness
who provided any testimony concerning a manager’s statement
about Francis. She testified that in January 2013, she observed
Francis outside the facility with other individuals. Although
she did not identify a specific date, her total testimony indicates
that Francis was distributing union literature after his suspen-
sion or discharge. Williams recalled that she made the state-
ment, “Wow, that’s a bold move. The guy is actually forming a
union against the company.” She recalled that Young had been
standing near her and he responded, “Yeah, I know. Francis has
a lot of nerve doing something like that after everything I’ve
done for him.” While Young’s statement is certainly indicative
of animus toward Francis, the record also reflects that this
statement was also made after Foreman’s decision to terminate
Francis and after the Union’s January 3, 2013 letter announcing
Francis’ involvement with the Union.5 Furthermore, there is no
evidence that Yong had any role in the decision to suspend and
terminate Francis. The decision was initially made by Foreman
on December 26, 2012, and then finalized by Foreman on Janu-
ary 16, 2013, after the completion of Buckley’s investigation.
Thus, Young’s statement to Williams in January 2013 does not
establish that Foreman’s decision to terminate Francis on De-
cember 26, 2012, was based on animus for union activity.
d. Continuation of the Wright Line analysis
As discussed above, I do not find that all components of the
Wright Line analysis have been met to establish that Respond-
ent was unlawfully motivated in its decision to suspend and to
terminate Francis. For the foregoing reasons, I do not find that
there is sufficient evidence to substantiate that Francis’ union
support was known to the Respondent prior to January 3, 2013.
Additionally, even if there was credible evidence of the Re-
spondent’s knowledge, the evidence of animus is marginal.
Assuming, however, that the requisite elements of knowledge
and animus have been demonstrated, I nevertheless find suffi-
cient evidence to show that Respondent would have terminated
Francis in the absence of protected activity.
e. Respondent’s treatment of other employees involved
with losses
The General Counsel takes the position that Respondent has
terminated Francis for his association with losses and yet has
not terminated other employees for similar conduct. Respond-
ent’s handbook provides that “loss or mis-delivery” of custom-
er shipments due to negligence or failure to abide by company
rules, regulations, policies, and procedures may result in disci-
plinary action up to and including discharge. Respondent not
only asserts that it has terminated employees for similar losses,
but it maintains that since January 2011 until the present, Fran-
cis has been associated with a greater dollar amount in losses
than any other employees.
In response to a subpoena from the General Counsel, Re-
spondent prepared a summary of all ATM and CompuSafe
losses paid by Respondent from January 2011 until the time of
the July 2013 trial. The parties stipulate that during this time
period, there were 367 losses. For each loss, the summary lists
a number of identifying factors including the customer’s name,
date of loss, amount of loss, and the employee associated with
the loss. The summary reflects that during this period of time,
Francis is listed as associated with six separate losses. Re-
spondent admits that the summary reflects that there are other
employees who have had more losses. One other employee
identified as Espinal is reflected on the summary as associated

5 Francis testified that after he began to support the Union and be-
fore the Union’s letter of January 3, 2013, he believed that Young
stared at him and was less friendly with him. There is no evidence,
however, that Young made any statement to Francis during this time to
indicate knowledge of or animus for his union activity. Thus, the al-
leged animus based on Young’s demeanor is only speculation that
cannot sustain a finding of animus.
BRINK’S, INC. 1221
with 16 losses. I note, however, that for 14 of the identified
losses, the loss is associated with one or more other employees.
For those incidents where only Espinal is associated with the
loss, the loss amounts are $200 and $210 respectively.
In the posthearing brief, the General Counsel submits that
the dollar amounts of the casino losses for which Francis was
terminated were also similar in value to the losses associated
with other employees whom Respondent did not discipline.
Counsel for the General Counsel points out that the losses asso-
ciated with Francis was $2900 for June 1; $13,000 for Septem-
ber 7; $3980 for October 8; and $5000 for November 16.
Counsel submits that Respondent’s summary reflects that em-
ployees “D. Tavares” and “L. Paulino” were jointly associated
with a loss of $9900; Maysonet was associated with a loss of
$8875; and J. Lewis was associated with a loss of $4120. The
General Counsel also contends that even though there was a
total of 367 losses between January 1, 2011, and the date of the
trial, Respondent terminated only two other employees in con-
nection with their losses other than Francis. The record also
reflects that Respondent terminated three other employees on
February 11, 2010, October 19, 2010, and January 13, 2012, in
connection with losses at the Brooklyn branch.
There is no evidence that Respondent has a practice in which
an employee is disciplined or discharged after reaching a spe-
cific threshold amount of associated losses. Respondent as-
serts that it terminated R. Mendoza on October 19, 2010, after
it was determined that he was the messenger connected with
three losses totaling $14,860. Respondent also submits that it
terminated A. Serrano on January 5, 2011, after it was deter-
mined that he was the messenger associated with a high fre-
quency of ATM shortages during the calendar year 2010 and
totaling $20,200. Furthermore, Respondent points out that on
April 9, 2012, Respondent terminated J. Diaz because he was
determined to have been associated with losses of $6420. As
evidence by the records submitted by the General Counsel,
there have been other employees who have been associated
with a large number of individual losses who have not been
disciplined or discharged. Thus, there is no pattern or uni-
formity in Respondent’s treatment of employees with respect to
associated losses. There is however, one difference between
Francis and any of the other employees advanced by the Gen-
eral Counsel in the argument that Respondent treated Francis
disparately. The record reflects that in July 2011, Francis was
clearly associated with a loss of $31,000. While Respondent’s
investigation did not determine that Francis took the missing
cash or purposely diverted it, he was nevertheless the messen-
ger who took possession of the cash and who subsequently
failed to complete the necessary paperwork to secure the cash.
But for Young’s intervention, Foreman would have terminated
Francis at that time. He was, however, given a second chance.
After a loss of this magnitude in 2011, Francis was again asso-
ciated with losses totaling approximately $24,540 between June
1 and November 16, 2012. Thus, Respondent submits that
between January 1, 2011, and the date of his discharge, Francis
was associated with losses of $51,896 in comparison to the next
closest messenger; R. Espinal who was associated with a total
of $21,920 in losses.
3. Final conclusions
As I have indicated above, I do not doubt that Marvin Fran-
cis supported the Union or that he wanted to assist Esammason
in his organizing efforts at the Brooklyn facility. There is
simply an insufficiency of evidence to demonstrate that he did
so in a way that garnered Respondent’s knowledge or that trig-
gered his discharge because of his union support. Furthermore,
it is simply not plausible that the basis for his termination was
pretextual. In order to do so, I would need to find that Fore-
man’s request to Rosario for a status report on losses was not
prompted by the BAMS report of December 6, 2012, and was
made solely to target Francis. Further, I would need to find that
Rosario’s spreadsheet was erroneous and that it was prepared
for the purpose of focusing only on Francis’ losses. Rosario
credibly testified that Foreman did not request that she focus
her investigation on any particular messenger. She reported to
Foreman that as of December 9, 2012, 13 open losses remained
and 7of those losses related to Global Access Cash. In order to
find a pretext, I would also have conclude that the December
18, 2012 email from Respondent’s regional controller concern-
ing the open PLRs of almost $400,000 and Vice President
Vechiarella’s directive to resolve the potentially accruing PLRs
was either of no significance to Respondent or were generated
solely to target Francis for his losses. I have no reason to con-
clude that this correspondence was inconsequential, invalid, or
discriminatorily based.
The record contains a myriad of evidence concerning the
various SL1 forms and guide sheets that pertained to the four
losses associated with Francis. Rosario testified in detail how
she conducted her investigation of the losses and how she came
to conclude that Francis was associated with these losses. Gen-
erally, she found Francis to be the messenger who participated
in the servicing of the ATMs on the day before the losses or the
day when the losses were established. She did so based on her
finding that Francis’ name was either preprinted on the docu-
ments or was handwritten on the documents. During his testi-
mony, Francis contended that he was not responsible for the
losses. He either contended that someone else had written his
name on the documents or that he had not been on the routes in
question. I don’t find Francis’ testimony to be wholly convinc-
ing with respect to these denials. As an example, Francis de-
nies that he serviced the ATM on the day of the September 7,
2012 loss; however, he acknowledges that he was on the route
for this ATM on the previous day that it was serviced. He con-
firmed that he worked the route with two other employees who
did not normally work on the casino route. He denies responsi-
bility for the loss as he claims that he only serviced the top of
the ATM in question and that fellow employee K. Gordon ser-
viced the bottom of the machine. He acknowledged, however,
that he didn’t know if Gordon was even qualified to service the
ATM.
When Buckley interviewed Francis on January 3, 2013, he
concluded that Francis was evasive and misleading and this
report was given to Foreman. Francis’ testimony concerning
his involvement with the losses was not persuasive or convinc-
ing. Francis denies his involvement in several of the losses by
contending that someone else wrote his name on the SL1s or
guide sheets in question. Inasmuch as Francis also testified that
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the driver often completes part of the documentation rather than
the messengers, the absence of Francis’ handwriting is not of
great consequence. Specifically, Francis testified that it is
common for drivers to complete the guide sheets. Thus, while
Francis may not have written his name on some of the relevant
guide sheets, the driver on the route may have done so. Thus, it
was irrelevant whether Francis or someone else on the crew
inserted his name on the guide sheet and it was not inappropri-
ate for Rosario to rely on the guide sheets in preparing her
spreadsheet.
As I discussed with the parties over the course of the hear-
ing, the crux of the issue is not whether Francis caused the par-
ticular losses, but whether Respondent believed that he was
responsible or associated with the losses and terminated him
because of this belief. There is no indication that Foreman or
any other manager made any independent analysis of the vari-
ous loss documents to determine the extent to which Francis
was involved. Buckley even testified that he could not look at
the documents and determine their significance. He testified
that he met with Rosario in order that she could explain the
documents and her analysis to him. Thus, both Foreman and
Buckley relied on the information provided by Rosario. She is,
therefore, a critical witness in my analysis of the evidence and
in making the associated credibility determinations.
I found Rosario to be a credible witness. She is not a mem-
ber of management and she is one of three reconciliation clerks;
whose job involves the analysis of variances and losses. There
was nothing in the record to indicate that Rosario had any ani-
mus toward Francis or any reason to single him out. Williams,
who assisted Rosario in her analysis, and who was also called
as a witness for the General Counsel, acknowledged that some
of the losses associated with Francis were “pretty large.” Even
though Williams helped Rosario to locate the loss documents
associated with Francis, she did not testify that she was aware
that Rosario was doing so for a discriminatory purpose. As
Williams was a member of management at this time, it is rea-
sonable that she would have known if the loss analysis related
to Francis was associated with his union activity or for any
other discriminatory purpose. Accordingly, there is simply
insufficient evidence to establish that Respondent’s reason for
terminating Francis was pretextual or for reasons other than
those asserted.
For the reasons and rationale as set forth above, I do not find
that Marvin Francis was suspended on January 3, 2013, and
terminated on January 16, 2013, because he engaged in protect-
ed activity.
CONCLUSION OF LAW
The General Counsel has failed to prove by a preponderance
of the evidence that Respondent violated the Act in suspending
and terminating Marvin Francis. Thus, the Respondent is not
shown to have violated the Act as alleged in the complaint. On
these findings of fact and conclusions of law and on the entire
record, I issue the following recommended6
ORDER
The complaint is dismissed.

6 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 by Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.