CDA, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2006

15-CA-017832 (N.L.R.B. Dec. 27, 2006)

JD(ATL)–42–06
Fort Rucker, AL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

CDA, Inc.

and Case 15–CA–17832

UNITED GOVERNMENT SECURITY OFFICERS
OF AMERICA, INTERNATIONAL UNION and
UNITED GOVERNMENT SECURITY OFFICERS
OF AMERICA, LOCAL 401

Joseph A. Hoffmann, Jr., Esq., for the General Counsel.
Everett M. Urech, Esq., for the Respondent.
Ms. Bonnie Pitts, for the Charging Party.

DECISION

Statement of the Case
GEORGE CARSON II, Administrative Law Judge: This case was tried in Ozark,
Alabama, on November 13, 2006.1 An order consolidating cases and consolidated complaint in
this case and Case No. 15–CA–17898 issued on October 27, 2006. At the hearing I approved a
non-Board settlement of the allegations in Case No. 15–CA–17898, dismissed the complaint
with regard to the settled allegations, and severed that case.2 Case No 15–CA–17898 has been
deleted from the caption. The remaining paragraphs of the complaint allege two violations of
Section 8(a)(1) of the National Labor Relations Act, the discharge of Bonnie Pitts in violation of
Section 8(a)(1) and (3) of the Act, and several violations of Section 8(a)(5) of the Act. The
Respondent’s answer denies all violations. I find that the discharge of Pitts and the failure of the
Respondent to provide the Union with requested relevant information violated the Act.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the brief filed by the General Counsel, I make the following

1 All dates are in 2005 unless otherwise indicated. The charge in Case No. 15–CA–17832 was
filed on September 30 and amended on December 13.
2 Counsel for the General Counsel objected to the severance of the cases but not to the terms
of the settlement, which were stated on the record and to which both the Respondent and
Charging Party, a different union representing a different unit, agreed. In view of Counsel’s
objection, rather than remanding Case No. 15–CA–17898 to the Region, I retained jurisdiction
and advised the parties that, in the event of a failure to comply with the terms of the non-Board
settlement, the alleged failure should be raised pursuant to an appropriate motion to me.
Counsel stated that his objection was predicated upon a policy of the Region regarding
severance. Case No. 15–CA–17898 involved a different Charging Party and a different unit. I
perceived no basis for depriving the parties of an amicable settlement upon terms to which they
agreed and to which the General Counsel had no objection.

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Findings of Fact
I. Jurisdiction
The Respondent, CDA, Inc., the Company, is a corporation engaged in providing
security services at various military installations in the United States including Fort Rucker,
Alabama. The Company annually provides services valued in excess of $50,000 to the United
States government. The Respondent admits, and I find and conclude, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

The Respondent, at the hearing, admitted that United Government Security Officers of
America, International Union, and United Government Security Officers of America, Local 401,
jointly referred to herein as the Union, is a labor organization within the meaning of Section 2(5)
of the Act.

II. Alleged Unfair Labor Practices
A. Overview

The Company provides security services at Fort Rucker, Alabama. The Company
assumed the security contract at Fort Rucker from the previous provider of security in October
2003. Clifton Dates, President of the Company, is located in Memphis, Tennessee. The on-site
Project Manager is Ronald Head, who worked as a security officer for the predecessor.

On April 15, 2002, the Union was certified as the representative of the approximately
150 full-time and regular part-time security officers of the predecessor.3 After the Company
assumed the security contract in October 2003, the Union and Company entered into a
collective-bargaining effective from March 1, 2004, until March 1, 2008. In August 2004, Bonnie
Pitts became President of Local 401. Pitts filed grievances on behalf of herself as well as other
unit employees. In October 2004, Pitts met President Clifton Dates “to go over grievances.”
Dates, referring to the grievances, told Pitts that the “the Union was causing him too much time
and money and that, if the Union kept causing him trouble, he would get contracting [the
government contract people] to get rid of it.” He made a similar remark in January 2005. Dates,
who testified both before and after Pitts, did not deny making the foregoing statements. Pitts
was discharged on July 18, thereafter advised that she was only suspended, and finally
discharged on August 8.

Although there are Section 8(a)(1) and (5) allegations in the complaint, the central issue
in this case is whether the discharge of Pitts violated the Act.

B. Facts

In March, the Company’s prescribed uniform required the wearing of long sleeved shirts.
In southern Alabama, March can be hot. Project Manager Head made an exception to the
uniform requirement and permitted employees performing guard duties at a facility that had no
electricity and, therefore, no fans, to wear short sleeved shirts. Pitts, who was not assigned to
that facility, also dressed in a short sleeved shirt. A supervisor reprimanded her, apparently

3 The appropriate unit is: All full-time and regular part-time security officers employed by the
Employer to provide security at the Fort Rucker Army Base under the terms of any Federal
Government’s Department of Defense contract with the Employer.

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verbally, but Pitts, “in protest,” continued to wear a short sleeved shirt. Pitts was then counseled
for insubordination, after which she complied with the long sleeved shirt requirement. She filed a
grievance on April 1 regarding the reprimand and counseling.

In April, Pitts called in sick about an hour before her shift began. Prior to this, Head had
approved leave for a number of employees and had informed the employees scheduled to work
that any absence would need to be supported by “some type of documentation.” The contract,
Article 10, Section 10.11A, requires employees to call in at least three hours before their shift.
Pitts called in only an hour before her shift and failed to provide a medical excuse. She
explained to Head that she had a headache, that everybody knew she got headaches, and that
she did not want to incur the expense of going to a physician who would be unable to do
anything for her. Pitts was warned for an attendance violation. She filed a grievance.

On June 21, the Union, by Pitts, filed a request for information “for investigation for a
possible grievance.” The request, so far as relevant to this proceeding, seeks a list of
employees who requested Father’s Day off and received the day off, a list of employees who
requested that day off but were denied the day off, and the “[r]eason for each denial.”

On June 22, Project Manager Head responded, in writing, to the foregoing request
stating, “I’m not going to be harassed and map out every request for leave every time somebody
doesn’t get his or her way.”

In late June, the Company was advised that it would be required to provide security for a
Freedom Fest celebration at Fort Rucker over the July 4 weekend. Project Manger Head
published a memorandum dated June 22 stating that “[t]he following personnel will work the
stated shift on the day noted.” It acknowledged that the schedule would “involve personnel that
would be scheduled off for a holiday … and those that work a 32 hour shift.”

After Head published the memorandum, Union President Pitts called him and said that
the Company needed to “offer overtime and look for volunteers” rather than scheduling the D
shift employees who would be off over the holiday. According to Head, Pitts also stated that he
“couldn’t make them work and that they shouldn’t have to work.” Section 4.2 of the collective-
bargaining agreement provides that temporary assignments shall be voluntary “unless there are
no volunteers, in which case the Employer may require the least senior qualified employee to
take the temporary assignment.”

Head did not offer overtime or seek volunteers. He believed that Pitts was speaking with
employees because, following his conversation with her, he received calls from “some of the
individuals that didn’t want to work.” Because of those calls, Head was unsure whether those
employees would report. Although Head asserted that Pitts was “[t]elling people not to show up
for work,” there is no evidence that she did so.

Head testified that “several people” refused to work and were terminated. Documentary
evidence establishes that two employees, Robert Prueter and John Turner, did not report to
work and were terminated. Pitts filed grievances on their behalf.

On July 8, Pitts filed a class action grievance that stated the name of the aggrieved as
“D shift officers.” The grievance cites several articles of the collective-bargaining agreement
including Article 4, Section 4.2, which, as already noted, provides that temporary assignments
shall be voluntary “unless there are no volunteers, in which case the Employer may require the
least senior qualified employee to take the temporary assignment.” The description of the
grievance states, “Change in past practice. S/O’s [Security Officers] Dianna Smith, Sandy

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Adkins, Patricia Sherman, Sabrenia Nath, and Charlene Barry were required to work their
regular days off. Some of these Officers had already made plans for those days.” The
adjustment sought is “[t]hat this practice cease until negotiated on.” The grievance is signed by
Pitts “for ‘D’ Shift officers.”

Project Manager Head, by a memorandum dated July 11, responded to the grievance
filed by Pitts, citing a document that predates the collective-bargaining agreement, as follows:

The contingency plan required me to use my management right to direct the work force
to man all post [sic] and I was supposed to be able to do it without harassment,
coercion, or intimidation from the Union. The cover sheet on the rollover bidding dated
25 Nov 2003 states that “Any D-shift will be required to work in another location on
holidays or days off if needed.”

The name of the individuals that have filed this grievance in opposition to the
contingency plan have been forwarded to the COR [Contracting Officer Representative].

On July 18, Pitts was discharged. The termination document, dated July 18, and signed
by Project Manager Head, states:

ON 8 JULY 2005 I RECEIVED GRIEVANCE #54 LISTING 5 DISGRUNTLED
EMPLOYEES THAT HAD TO WORK IN SUPPORT OF FREEDOM FEST
CONTINGENCY PLAN.

ON 14 JULY 2005 I RECEIVED A DA FORM 2823 STATEMENT FROM DIANNA
SMITH STATING THAT SHE NEVER FILED OR WAS ASK [sic] TO FILE A
GRIEVANCE. SHE STATES THAT SHE UNDERSTOOD THE REQUIREMENTS OF
HER JOB WHEN SHE TOOK IT.

THIS GRIEVANCE WAS FILED WITHOUT THE SIGNATURE OF ANY OF THE NAMED
AGGRIEVED. THE ONLY SIGNATURE WAS BONNIE PITTS. THIS GRIEVANCE HAD
BEEN FALSIFIED AND MISREPRESENTS AT LEAST ONE OF THE PARTIES
NAMED. UNDER THE IRP [Individual Reliability Program] 3-7 DISQUALIFYING
FACTORS (8) FALSIFICATION. ANY KNOWING AND WILLFUL FALSIFICATION,
COVER-UP, CONCEALMENT, MISREPRESENTATION, OR OMISSION OF MATERIAL
USED BY DoD OR ANY OTHER FEDERAL AGENCY. [sic] THIS ACTION HAS
CAUSED A DISRUPTION TO THE WORK FORCE.

ALSO YOU WERE COUNSELED FOR ATTENDANCE OF 23 APRIL 2005 AND
COUNSELED FOR INSUBORDINATION FOR 24 AND 29 MARCH 2005.

YOUR EMPLOYMENT WITH CDA SECURITY IS TERMINATED.

Following the termination of Pitts on July 18, the Company placed her on suspension on
the basis of legal advice while “they looked into it a little closer.” On August 8, Pitts was again
informed that she was terminated. No additional reason for the termination was stated.

The DA For 2823 from Dianna Smith, to which the discharge document refers, was not
offered as an exhibit. Although the document notes the prior discipline administered to Pitts, the
“disruption in the work place” statement refers only to the alleged falsification.

Article 5, Section 5.5 of the collective-bargaining agreement grants the Union the right to

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"file a group grievance (class action).” President Dates, in a letter dated August 15, refers to the
July 8 grievance on behalf of the D shift employees as a “group grievance.”

The IRP [Individual Reliability Program] sets requirements for the contractor’s
employees and, in Chapter 3-7 lists disqualifying factors which include disloyalty, criminal
misconduct, and drug abuse. Disqualifying Factor 8, the factor cited in the discharge document,
relates to falsification/refusal to answer. It states:

Any knowing and willful falsification, cover-up, concealment, misrepresentation, or
omission of material used by DoD or any other Federal agency. Failing or refusing to
answer or to authorize others to answer questions or provide information required by a
Congressional committee, court, or agency in the course of an official inquiry when
information is relevant to the evaluation of an individual’s reliability.

At the hearing, Contracting Office Specialist Nancy Bledsoe, who is responsible for the
security contracts at Fort Rucker, was shown the grievance and testified that it was not a
document that the Department of Defense uses.

Pitts had previously filed grievances on behalf of employees, submitting them under her
signature, “Bonnie Pitts for” the named employee. The record reflects that such grievances were
filed on May 10 on behalf of Tammy Flanagan, on May 10 on behalf of Rachael Faber, on July 5
on behalf of Robert Prueter, and on July 5 on behalf of John Turner. Head, acting on behalf of
the Company, denied the foregoing grievances. The denials do not mention or object to the
failure of the grievant to sign the grievances signed on their behalf by Pitts. The denials of the
grievance of Prueter and Turner are dated July 12. On July 22, four days after Pitts’ discharge,
Head sent a memorandum to the Union, citing the grievances of Prueter and Turner and stating,
“[p]er section 5.3B, this shall be signed by the aggrieved employees and steward.”

Project Manager Head testified that he considered Pitt’s conduct, her uniform protest in
March, her failure to provide a medical excuse in April, and her purportedly “[t]elling people not
to show up to work,” to be insubordinate. When asked by Counsel for the Respondent whether
insubordination was the “the main reason” that he terminated her, Head answered, “yes.” When
asked by Counsel for the General Counsel whether he was testifying that the grievance filed by
Pitts on behalf of all D shift employees had nothing to do with her discharge, Head answered
that he was “not saying it didn’t have anything to do with it. It did cause part of the disruption …
it was going to cause a disruption.” When shown the discharge document that uses the term
disruption only with regard to the purported falsification of the grievance, Head defensively
answered, “I’m here to testify that it was all the actions.”

I do not credit Head’s response to his counsel’s question as to whether insubordination
was “the main reason” for Pitts discharge or his assertion that it was “all the actions.” The
discharge document clearly states and establishes that “the main reason” for her discharge was
what Head deemed to be falsification in violation of IRP Chapter 3-7, disqualifying factor 8, by
including Dianne Smith in the grievance without her knowledge or consent.

When recalled by the Respondent, Head again referred to “a disruption to the
workforce,” noting the calls that he received from employees which left him unsure as to
whether the employees were going to report to work as scheduled. There is no evidence that
Pitts had any involvement in, or responsibility for, those calls. More significantly, the discharge
document does not accuse Pitts of counseling employees not to report to work.

President Clifton Dates testified that Pitts was not fired for her grievance activity but for

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“gross insubordination and not working with our management team.” He felt that her alleged
failure to work with management was because Pitts “felt her loyalty [was] to the Union, and that
was where most of her problems derived from, loyalty.” He denied having seen the July 8
grievance, but then professed “familiarity with the violations that she were written up for.”

Following her termination, Pitts sought work at various locations including a local tavern,
the Office Lounge and Package Store, which is owned by Deborah Weaver. Pitts, as a customer
at the Lounge, had informed Weaver of her discharge, explaining that it was for “filing a
grievance.” Counsel for the General Counsel subpoenaed Weaver. She did not appear.4 I
permitted the General Counsel to make an offer of proof, the substance of which follows:

Ms. Pitts on September 13, 2005, went there [to the Office Lounge] to apply for a job.
Ms. Weaver told Ms. Pitts that she didn't have anything available but asked for her name
and information and for a contact number -- for previous employer information. She
wrote down Ronald Head's name and phone number where he could be reached. On
September 16, she telephoned Ronald Head. She asked --she told Mr. Head that Bonnie
Pitts had applied for a job and asked if she was dependable and punctual. Mr. Head said
yes. He then said that Ms. Pitts had been suspended at the time, then said that Ms. Pitts
had gotten involved in union doings, and the conversation ended. She'll [Weaver would]
say that she did not ask Mr. Head if Ms. Pitts was involved in union activity.

Pitts did not testify whether she was seeking work as a bartender or in some other
capacity, and she cited no past qualifications.

Project Manager Head, when testifying as an adverse witness, denied knowing anyone
named Deborah Weaver. When recalled following the foregoing offer of proof, he testified that
he had received a call from a woman regarding Pitts, but he “did not know her to be Ms. Weaver
at the time.” He considered the call to be a “set up” because the caller was not asking the type
of questions normally asked by a prospective employer. He did not recall being asked about
attendance or ability to “get along with others.” The individual questioned whether Pitts was still
employed or had any continuing relationship with the Company. He truthfully replied that Pitts
had been terminated but remained President of the Local Union.

C. Contentions of the Parties

The General Counsel contends that the Company’s own document reflects that Pitts was
discharged for an alleged misrepresentation in the course of the protected activity of filing
grievances and that the discharge violated both Section 8(a)(1) and (3) of the Act.

The Respondent, through the testimony of Project Manager Head, contends that Pitts
was discharged for insubordination and disruption. Project Manager Head acknowledged that
Pitts was only counseled for being out of uniform in March. Although he referred to the April
incident as “insubordination,” the discharge document refers to that discipline as “attendance.”
The discharge document simply refers to the prior discipline that Pitts had received for
attendance in April and insubordination in March. Head never explained how the July 8
grievance, which sought bargaining, not a monetary remedy, “was going to cause a disruption.”

D. Analysis and Concluding Findings

4 I denied a motion to adjourn the hearing for subpoena enforcement. See Ohmite Mfg. Co., 290
NLRB 1036 at fn. 5 and 1044 at fn. 8 (1988).

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1. The Section 8(a)(1) Allegations

The complaint alleges that the Respondent, on July 11, “sent, or threatened to send, the
name of employees who filed grievance to the United States Army’s Government Contracting
Officer for possible punitive action.” The memorandum to Local 401 in which Head states that
he is sending the names of the employees named in grievance #54 to “COR” does not mention
punitive action. There is no evidence that the Contracting Officer Representative has any
disciplinary authority regarding employees of the contractor. Neither Pitts nor any other union
representative testified to the effect, if any, of sending the names of the employees named in
the grievance to the COR. There is no evidence that the memorandum constituted a threat of
punitive action for filing a grievance. I shall recommend that this allegation be dismissed.

The complaint alleges that the Respondent, by Project Manager Head, “told a
prospective employer about employees’ union activity in an attempt to interfere with their job
search.” Although Pitts had informed of Weaver that she had been discharged by CDA for “filing
a grievance,” the General Counsel points out that the complaint allegation is predicated upon
the intent of Project Manger Head. Although Head had disciplined Pitts for insubordination and
attendance, according to the offer of proof, he assured Weaver that that Pitts was dependable
and punctual. Even if I credited only the statement in the offer of proof, Head’s truthful reference
to Pitts’ union activity would interfere with her job search only if Weaver, the prospective
employer, discriminated on the basis of a prospective employee’s union sympathies. Weaver
knew of Pitts’s union activity, and she had no position to fill. Head did not seek to discourage
Miler from hiring Pitts. James Group Services, 219 NLRB 158 (1975), Armstrong Rubber
Company, 215 NLRB 620 (1974).

Insofar as Weaver had no position to fill, I cannot comprehend why Weaver would seek
to contact Head regarding a nonexistent position other than at Pitts’ request. I credit Head’s
testimony that his reference to Pitts’ union activity was a truthful response to Weaver’s
questioning him as to whether Pitts had any continuing relationship with the Respondent. There
was no interference with Pitts’ job search. I shall recommend that this allegation dismissed.

2. The Section 8(a)(5) Allegations

The complaint alleges that the Respondent has failed and refused to provide the Union
with the information requested on June 21 regarding employees who requested to be off on
Father’s Day and either were given or denied the day off, together with an explanation for the
denied requests. Project Manager Head’s response refers to harassment and states that he is
not going to “map out every request for leave every time somebody doesn’t get his or her way.”
The Respondent does not contend that it provided the information or any further response.

The decision in A-Plus Roofing, 295 NLRB 967, 970 (1989), confirms that “[a]n
employer, pursuant to Section 8(a)(5) of the Act, has an obligation to provide requested
information needed by the bargaining representative of its employees for the effective
performance of the Respondent's duties and responsibilities. NLRB v. Acme Industrial Co., 385
U.S. 432, 435-436 (1967).” Insofar as the information sought relates to bargaining unit
employees, it is presumptively relevant and “[a]n employer must furnish information that is of
even probable or potential relevance to the union’s duties” Conrock Co., 263 NLRB 1293, 1294
(1982). The Respondent, by failing to provide the requested information that was relevant to the
Union “for investigation for a possible grievance,” violated Section 8(a)(5) of the Act.

The complaint alleges that the Respondent, since July 18, has refused to meet and

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bargain with the Union regarding the “supervision and termination,” actually the suspension and
termination, of Pitts; since August 8, has refused to meet and bargain regarding the termination
of Pitts; and since July has failed and refuse to process a grievance regarding requiring
employees to work on their regular day off. On July 19, Pitts filed a grievance regarding her
initial discharge, and on August 17 she filed a grievance regarding her discharge on August 8.
As already noted, on July 11, Project Manger Head responded to the Union regarding the
grievance requiring employees to work on their day off stating that he used his “management
right to direct the work force to man all post[s].” Thereafter, by letter dated July 22, he informed
the Union that “CDA Inc. Memphis and their representatives are handling these cases.” The
General Counsel argues that, thereafter, there was no further response. Counsel for the
General Counsel’s brief does not address Section 5.3E of the contract which provides that “[i]f
either party fails to respond within the above-prescribed [contractual] time limits, the said party’s
issue will be deemed a settlement for the last requesting party.” The Respondent had no
obligation to “meet and bargain” other than in the context of the contractual grievance
procedure. The foregoing contractual provision obviates a need for any response. I shall
recommend that these allegations be dismissed.

3. The Discharge of Bonnie Pitt

The Board, in Exxon Mobil Corp., 343 NLRB No. 44 (2004), confirmed the protected
status of union stewards engaged in grievance filing activity as follows:

It is well established that employees, under Section 7 of the Act, have the protected right
to file and process grievances, and the discipline or discharge of employees for doing so
is a violation of Section 8(a)(1). See, e.g., Prime Time Shuttle International, 314 NLRB
838, 841 (1994); Thor Power Tool Co., 148 NLRB 1379, 1380-1381 (1964), enfd. 351
F.2d 584 (7th Cir. 1965). The Board has long made clear that the grievance activities of
union stewards are especially important to the effectiveness of grievance-arbitration
machinery. Union Fork & Hoe Co., 241 NLRB 907, 908 (1979); Clara Barton Terrace
Convalescent Center, 225 NLRB 1028, 1034 (1976).

I have not credited the testimony of Project Manager Head regarding the multiple
reasons that he cited as being his reasons for discharging Pitts. When shifting reasons are
given by a Respondent in order to justify a discharge, the Board has often inferred that the
shifting reasons were given to hide the true reason for the discharge. In this case, the shifting
reasons were given in an incredible attempt to negate the reason for discharge that was clearly
stated on the Respondent’s discharge document dated July 18.

Project Manager Head asserted that he discharged Pitts for insubordination, citing her
conduct in March and April coupled with his belief that she was causing disruption by
counseling employees not to report for Freedom Fest, but he did not do so. If, as he claimed in
testimony, those were the reasons for her termination, Head would have discharged Pitts well
before July 18. On July 11, Head responded to the grievance relating to the scheduling of D
shift employees by citing the management rights clause in the contract. It was not until the
Respondent received the report of Dianna Smith that the Respondent took any action against
Pitts. Project Manager Head appears to have been aware that he could not discipline Union
President Pitts simply for filing grievances. Notwithstanding that awareness, his refusal to
provide information regarding his approving or denying leave over Father’s Day, while asserting
that he was being “harassed,” reveals antipathy towards the filing of grievances by the Union.
The discharge document accuses Pitts of having falsified a document in violation of the IRP, an
offense that she did not commit. I find that the Respondent seized upon Smith’s report to
accuse Pitts of falsification in order to put an end to the disruptive “harassment” of grievances

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that she filed for the Union.

The discharge document refers to the IRP section relating to falsification. That provision
relates to falsification of “material used by DoD.” Contract Specialist Bledsoe testified that the
grievance was not a document used by the Department of Defense. The Board, in Roadmaster
Corp., 288 NLRB 1195 (1988), held that the union steward therein, although having actually
forged the name of the grievant, had not falsified a company document because “grievance
forms … cannot reasonably be considered company documents within the meaning of the
Respondent's rule in this case.” In this case, the grievance was not a DoD document. It was not
used by DoD. It was and is a Union document. There was no falsification in violation of the IRP.

Furthermore, there was no falsification of any document. The group grievance names
the affected D shift employees. Pitts did not forge any signatures. She, as President, signed the
grievance on their behalf, “for ‘D’ Shift officers.” The fact that one or more of the affected
employees “may not have been aware or may not have directly participated in … [the] decision”
to file the grievance is immaterial. Brad Snodgrass, Inc., 338 NLRB 917, 923 (2003). The
grievance was a grievance of the Union claiming a change in past practice that was contrary to
the contract.

As Counsel for the General Counsel points out in his brief, the grievance does not claim
that any D shift employee was complaining. The grievance requests that that “this practice
cease until negotiated on,” an institutional remedy involving the Union rather than an individual
remedy such as compensation for each employee. I have found no case authority holding that
the inclusion of the name of a member of a group affected by an alleged change or contract
violation without the consent of that group member constitutes some sort of impropriety. The
inclusion of the names of the D shift employees “was part of the res gestae of the grievance
procedure” and as such was protected concerted activity.” Roadmaster Corp., supra at 1197.
Pitts engaged in no opprobrious conduct that removed her from the protection of the Act with
regard to her protected grievance filing activity. Atlantic Steel Co., 245 NLRB 814 (1979).

The General Counsel argues that Pitts was discharged for her grievance filing and union
activity, alleged in the complaint as both a Section 8(a)(1) and (3) violation. In this case, as in
Roadmaster Corp., supra, there is evidence of animus towards grievance filing activity. Project
Manager Head’s June 22 response to the Union’s request for information in which he advised
that he was “not going to be harassed,” reflects animus. That animus is confirmed by President
Dates’ statements to Pitts that “the Union was causing him too much time and money and that,
if the Union kept causing him trouble, he would get contracting [the government contract people]
to get rid of it.” He referred to Pitts’ “loyalty” to the Union, which, by implication, constituted
“disloyalty” to the Respondent. See Sea Breeze Health Care Center, 331 NLRB 1131,1132
(2000). I find that the Respondent discharged Local Union 401 Union President Bonnie Pitts in
order to put an end to her grievance filing activity. In doing so, the Respondent violated Section
8(a)(1) and (3) of the Act, as alleged in the complaint.

I am mindful that the Board holds that “where an employer admits that it discharged an
employee for engaging in protected activity, a Wright Line analysis is inapplicable. See, e.g.,
Phoenix Transit System, 337 NLRB 510 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003).”
Allied Aviation Fueling of Dallas LP, 347 NLRB No 22, at fn. 2 (2006). In this case, as discussed
above, the Respondent has not admitted that it discharged Pitts because of her protected
grievance filing activity, thus, lest there be any question, I shall address the evidence under the
framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). There is no issue regarding Pitts’ involvement in protected union
activity and the Respondent’s knowledge of that activity. Even when an employer does not

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harbor overall animus towards employee organizational activity, animus towards an employee’s
“grievance activity and his [her] exercise of rights under the collective bargaining agreement”
establishes the requisite animus. New Orleans Cold Storage Co., 326 NLRB 1473, fn 1 (1998).
The termination of Pitts was an adverse action directly affecting her employment. Thus, the
General Counsel established that Pitts’ union activity was a motivating factor for the
Respondent’s action. Manno Electric, 321 NLRB 278 (1996).

The Respondent has not established that Pitts would have been discharged in the
absence of her protected conduct. The alleged falsification of the grievance “was part of the res
gestae” of her protected grievance filing activity. In fact, there was no falsification. I have not
credited Project Head’s testimony, unsupported by any probative evidence, that Pitts engaged
in any misconduct with regard to the work requirements for Freedom Fest. No such misconduct
is stated in the discharge memorandum. President Dates’ references to Pitts’ loyalty further
confirm the Respondent’s unlawful motivation. I find that the reasons offered by the Respondent
at the hearing that vary from the clear language of the discharge document are pretextual. The
discharge document cites Pitts for falsification in violation of disqualifying factor 8 in the IRP
[Individual Reliability Program]. That provision relates to “material used by DoD.” Pitts did not
falsify material used by the Department of Defense. As I have found, she falsified nothing. When
the reason given for an adverse employment action is either false, or does not exist, the
Respondent has not rebutted General Counsel’s prima facie case. Limestone Apparel Corp.,
255 NLRB 722 (1981). Thus, even if a Wright Line analysis were applicable, the record
establishes that the Respondent discharged Pitts because of her protected grievance filing
activities in violation of Section 8(a)(3) of the Act.

Conclusions of Law

1. By discharging Bonnie Pitts on July 18, 2005, thereafter converting the discharge to a
suspension, and by discharging her on August 8, 2005, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act.

2. By failing and refusing to provide the Union with the information it requested regarding
requests for the day off on Father’s Day and the granting or denial of such requests and
reasons for denials as requested by the Union on June 21, 2005, said information being
relevant and necessary to the Union as the collective-bargaining representative of the unit
employees it represents, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.

Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged Bonnie Pitts, it must offer her
reinstatement and make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from August 8, 2005, to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

The Respondent having failed and refused to provide the Union with the information it

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sought regarding requests for the day off on Father’s Day, the granting or denial of such
requests, and reasons for denials as requested by the Union on June 21, 2005, it must promptly
supply that information.

The Respondent must also post an appropriate notice.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5

ORDER

The Respondent, CDA, Inc., Fort Rucker, Alabama, its officers, agents, successors, and
assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee for engaging in
grievance filing activities for United Government Security Officers of America, International
Union, and United Government Security Officers of America, Local 401, or any other union.

(b) Failing and refusing to provide the Union with the information regarding requests for
the day off on Father’s Day, the granting or denial of such requests, and the reasons for denials
as requested by the Union on June 21, 2005, said information being relevant and necessary to
the Union as the collective-bargaining representative of the unit employees it represents in the
following appropriate unit:

All full-time and regular part-time security officers employed by the Employer to provide
security at the Fort Rucker Army Base under the terms of any Federal Government’s
Department of Defense contract with the Employer.

(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Bonnie Pitts full reinstatement to her
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previously enjoyed.

(b) Make Bonnie Pitts whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of the
decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful discharge, and within 3 days thereafter notify Bonnie Pitts in writing that this has been
done and that the discharge will not be used against her in any way.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.

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(d) Provide the Union with the information it sought regarding requests for the day off on
Father’s Day and the granting or denial of such requests and reasons for denials as requested
by the Union on June 21, 2005.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(f) Within 14 days after service by the Region, post at its facility at Fort Rucker, Alabama,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
June 21, 2005.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., December 27, 2006

_____________________
George Carson II
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall
read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–42–06

APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT discharge or otherwise discriminate against any of you for engaging in grievance
filing activities for United Government Security Officers of America, International Union, and
United Government Security Officers of America, Local 401, or any other union.

WE WILL, within 14 days from the date of the Board’s Order, offer Bonnie Pitts full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed
and WE WILL make her whole for any loss of earnings and other benefits suffered as a result of
the discrimination against her, less any net interim earnings, plus interest, in the manner set
forth in the remedy section of the decision.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Bonnie Pitts and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that the discharge will not be used against her
in any way.

WE WILL NOT fail and refuse to provide to the Union information that it has requested that is
relevant and necessary to the Union as the collective-bargaining representative of the unit
employees it represents. The appropriate unit is:

All full-time and regular part-time security officers employed by the Employer to provide
security at the Fort Rucker Army Base under the terms of any Federal Government’s
Department of Defense contract with the Employer.

WE WILL promptly provide the Union with the information it sought regarding requests for the
day off on Father’s Day, the granting or denial of such requests, and reasons for denials as
requested by the Union on June 21, 2005.

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WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of you in the
exercise of your rights guaranteed by Section 7 of the Act.

CDA, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1515 Poydras Street, Room 610, New Orleans, LA 70112–3723
(504) 589–6361, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (504) 589–6389