Corrections Corporation of America

National Labor Relations Board - Board Decisions

Jul 28, 2006

347 N.L.R.B. 632 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 62
632
Corrections Corporation of America and Interna-
tional Union, Security, Police, and Fire Profes-
sionals of America (SPFPA) and Edward Car-
roll. Cases 21–CA–36223 and 21–CA–36225
July 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On February 3, 2005, Administrative Law Judge James
M. Kennedy issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering 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,1 and conclusions as
discussed below.
The judge found that the Respondent violated Section
8(a)(1) of the Act by initiating a drive to decertify the
Union (International Union, Security, Police and Fire
Professionals of North America (SPFPA)) and then co-
ercing its employees to support the decertification drive
by informing them that it would know who did and who
did not support that effort. The judge further found that
the Respondent also violated Section 8(a)(1) by unlaw-
fully transferring correction officer Edward Carroll from
his position as a court security officer to a less desirable
position because of his union activities. Finally, the
judge found that the Respondent violated Section 8(a)(3)
and (1) by unlawfully discharging correction officer Cruz
Mireles because of his union activities, including his
attempt to represent another employee during a miscon-
duct investigation. For the reasons discussed below, we
affirm the judge’s conclusions.
I. OVERVIEW
The Respondent operates a correctional facility in San
Ysidro, California. During 2002, the Union sought to
organize the Respondent’s correction officers (COs).
Carroll and Mireles actively campaigned for the Union
during the organizing campaign. The Union was certi-
fied as the exclusive bargaining representative of the
Respondent’s COs at the San Ysidro facility on May 24,
2002. Following the Union’s certification, Carroll and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of 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 judge’s findings.
Mireles became the Union’s acting vice president and
president, respectively. Both represented the Union in
bargaining, which began in November 2002. No agree-
ment was ever reached. A decertification petition was
filed on March 19, 2004.2
II. THE UNFAIR LABOR PRACTICES
A. Encouraging the Union’s Decertification
1. Background
On October 6, 2003, Warden Barbara Wagner posted a
memo purportedly responding to questions asked by em-
ployees about the Union. As detailed in the judge’s deci-
sion, the questions answered in the memo included, “Do
you have to be a member of the Union to sign a decerti-
fication petition or to vote in any certification election?”
and “How can we get rid of the union?” The memo also
referenced a website that displayed a sample decertifica-
tion petition.
Wagner testified that three employees inquired about
getting rid of the Union. Of the three, only CO Francisco
de la Fuente testified. According to Wagner, following a
discussion about the Respondent’s health benefits plan,
de la Fuente asked her how do “we” get rid of the Union.
This account, however, was at odds with the version pro-
vided by de la Fuente, whose testimony emphasized that
he had sought out Wagner because he was frustrated by
the lack of options that Respondent provided for health
care and wanted to know what other plans were available
for his family. de la Fuente testified that he did not even
know he was represented by a union until he spoke to
Wagner, who answered his inquiry by telling him that no
other plans were available because the Union had already
“voted” on the existing plan.
The judge found that Wagner mischaracterized de la
Fuente’s purpose, in that de la Fuente could not have
approached Wagner to ask how to get rid of the Union
when he had been unaware that the Union held represen-
tative status. Wagner used de la Fuente’s limited inquiry
on benefits as the basis for volunteering the opinion that
de la Fuente did not have access to other plans because
of the Union, thereby directly attempting to undermine
the Union. Indeed, the judge found that Wagner’s re-
sponse to de la Fuente was false: no union-negotiated
health plan was in place at that time. The judge also
discredited Wagner’s denial that she posted the page of
the memo asking about decertification and her remaining
uncorroborated testimony that employees had asked her
how to get rid of the Union, finding that the memo was
not a response to any employee-generated concern, but
instead an “underhanded, stealthy effort to get rid of the

2 Dates hereafter are in 2004, unless otherwise indicated.
CORRECTIONS CORP. OF AMERICA 633
Union.” The judge also found that the Respondent’s
effort included creating a “parade of horribles” com-
prised of distortions and untruths regarding the Union’s
internal procedures. The judge further found that the
Respondent coerced the employees to support the decer-
tification effort by implying that it would know who did
and who did not support its effort to oust the Union.
2. Discussion
We agree with the judge that the Respondent violated
Section 8(a)(1) by unlawfully encouraging the employees
to seek decertification of the Union. “An employer may
not ‘initiate a decertification petition, solicit signatures
for the petition or lend more than minimal support and
approval to the securing of signatures and the filing of
the petition.’” Sociedad Espanola de Auxilio Mutuo y
Beneficencia de P.R., 342 NLRB 458, 459 (2004) (quot-
ing Eastern States Optical Co., 275 NLRB 371, 372
(1985)). It is not determinative that an employer does
not expressly advise employees to get rid of the union.
Armored Transport, Inc., 339 NLRB 374, 378 (2003)
(citing Wire Products Mfg. Corp., 326 NLRB 625, 626
(1998), enfd. sub nom. NLRB v. R. T. Blankenship &
Associates, Inc., 210 F.3d 375 (7th Cir. 2000)). Indeed,
such direct appeals are not essential to establish that an
employer solicited decertification. Id. at 378.
The Respondent argues that its statements about decer-
tification were merely in response to employee inquiries
on how to decertify the Union. We agree with the judge
that the Respondent’s position has no merit.
The credited testimony establishes that the Respon-
dent’s communications about decertification were not
prompted by employee inquiries and that the idea of de-
certifying the Union was conceived by the Respondent
and then proffered to the employees. See, e.g., Condon
Transport, Inc., 211 NLRB 297, 302 (1974). There is no
credible evidence that any employee ever asked the Re-
spondent how to get rid of the Union. As noted above,
the only employee to testify on this issue was de la
Fuente. That testimony shows that, in response to his
complaints about health benefits, Warden Wagner falsely
stated that no other plans were available because the Un-
ion had “voted” for the current health care packages.
Then, the Respondent distorted de la Fuente’s inquiry (as
to how to obtain additional health benefits) to suggest to
employees that De la Fuente had asked how to decertify
the Union.3 Thus, this is not a case of an employer aid-

3 The judge stated that “De la Fuenta initially gave some confusing
testimony” but “never testified that he had asked Wagner how to get rid
of the Union.” In this testimony, de la Fuenta testified that he did in-
quire about the steps he could take to deal with his employer directly or
to “bypass” the Union to resolve the medical benefits issue. Even
assuming that de la Fuenta asked how he could deal directly with the
ing employees in the “expression of their predetermined
objectives.” Poly Ultra Plastics, Inc., 231 NLRB 787,
790 (1977) (employer’s president assisted employees
with the petition they were preparing to allow them to
revoke their authorization cards). Instead, Wagner’s
posting was a “transparent attempt to invite procompany
antiunion efforts with implied support.” Northwest
Graphics, Inc., 342 NLRB 1288, 1297 (2004). Further-
more, the Respondent’s statement implying that it would
know who did, and who did not, support the decertifica-
tion drive added coercive force to its efforts to rid itself
of the Union. Under these circumstances, we find that
the Respondent violated Section 8(a)(1) by unlawfully
encouraging its employees to decertify the Union.
B. Edward Carroll’s Reassignment
1. Background
The Respondent hired Carroll in April 2000, and ini-
tially assigned him as a new officer to work in one of the
prison’s inmate housing unit pods under an irregular 6-
days-on, 2-days-off schedule. In May 2002, Carroll, and
fellow COs Cason, Lizarraga, and Maldonado, were se-
lected to work as primary courtroom officers. This was a
more desirable position because primary courtroom offi-
cers have a significantly better work environment, and a
schedule that regularly provides them every Saturday and
Sunday off. Carroll worked as a primary courtroom offi-
cer until October 2003, when he had knee surgery.
When Carroll returned to work on or about January 11,
2004, the Respondent assigned him back to an inmate
housing unit pod. Earl Semler, the Respondent’s chief of
security, testified that he reassigned Carroll because he
had been working in the courtrooms for more than a year
and it was time for Carroll to work someplace else so
that other COs could be trained to work as court security
officers. Asked why he had selected Carroll over the
other COs who had been working as court security offi-
cers, Semler simply explained that “you have to start
somewhere.” The Respondent submitted into evidence
an employee chart involving courtroom assignments,
ostensibly to support its training claim. The chart does
not reflect, however, who replaced Carroll as a court-
room trainee during the relevant time period. Just 2
weeks before the unfair labor practice hearing, the Re-
spondent notified Carroll that he was being reassigned to
the courtrooms on a full-time basis. Semler’s only ex-

Respondent, we agree with the judge that de la Fuenta initially ap-
proached Wagner only to discuss insurance options, and that Wagner
steered the conversation toward the Union as to the source of de la
Fuenta’s dissatisfaction, all as part of a plan to instigate a decertifica-
tion effort and coerce employees into supporting it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD634
planation for this reassignment was simply that “it was
time for [Carroll] to go back in” the courtrooms.
The judge found that Carroll was a known union ad-
herent, and that the Respondent’s unlawful effort to en-
courage the employees to decertify the Union demon-
strated union animus. He further found that the Respon-
dent’s assertion that Carroll’s reassignment was necessi-
tated by the need to train other COs to serve as court se-
curity officers rang hollow given that the evidence, in-
cluding the courtroom assignment chart submitted by the
Respondent, failed to support that assertion. The judge
instead found that Semler’s asserted reason for reassign-
ing Carroll was pretextual, and concluded that the Re-
spondent failed to show that Carroll would have been
reassigned in the absence of his union activities.4
2. Discussion
Under Wright Line,5 the General Counsel meets his
initial evidentiary burden by establishing that: (1) the
employee engaged in protected activity; (2) the employer
knew of that activity; and (3) the employer demonstrated
animus toward protected activity.6 If the General Coun-
sel makes such a showing, the burden of persuasion
shifts to the employer “to demonstrate that the same ac-
tion would have taken place in the absence of the pro-
tected conduct.” See Wright Line, supra at 1089.
We find, as did the judge, that the General Counsel
met this initial evidentiary burden. The Respondent
clearly knew of Carroll’s union activities through, among
other things, Carroll’s participation as the Union’s repre-
sentative in contract negotiations. The Respondent’s
unlawful encouragement of its employees to decertify the
Union, discussed above, provides the requisite evidence
of animus.
We also agree that the Respondent failed to satisfy its
Wright Line burden by demonstrating that it would have
reassigned Carroll from courtroom duty even absent his
union activities. Thus, the record supports the judge’s
finding that the Respondent’s explanation for reassigning
Carroll was pretextual (that is, either false or not in fact
relied on) and that the Respondent, therefore, failed to
show that it would have taken the same action absent
Carroll’s protected conduct. See Cox Communications

4 Although the complaint alleged that Carroll’s reassignment vio-
lated Sec. 8(a)(3) and (1), the judge found only a violation of Sec.
8(a)(1). The General Counsel has not excepted as to the disposition of
this 8(a)(3) allegation.
5 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983).
6 Member Schaumber would find that the General Counsel must also
show a causal nexus between the Sec. 7 animus and the adverse em-
ployment action. See Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn.
4 (2003), for further explanation.
Gulf Coast, L.L.C., 343 NLRB 164 (2004); Limestone
Apparel Corp., 255 NLRB 722, 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
According to the Respondent’s chart, during the period
in which Carroll was reassigned to an inmate pod (Janu-
ary 6, 2003, through September 2, 2004), only two COs
were assigned to the courtrooms for training who had not
been part of the original group of COs selected along
with Carroll in May 2002. Those two training assign-
ments, which involve COs Samaniego and Wheeler, ap-
pear to bear no direct correlation to Carroll’s absence
from the courtrooms. CO Samaniego was not assigned
courtroom duty until March 11, 2 months after Carroll’s
reassignment, and CO Wheeler was not assigned court-
room duty until early June.
Moreover, the Respondent did not refrain from return-
ing COs to full-time courtroom work at the same time
other COs were being trained in the courtrooms. Thus,
COs Rios and Cason, who had been removed from the
courtrooms for disciplinary reasons, were returned to
full-time courtroom assignments while Wheeler was as-
signed to courtroom training. The Respondent has also
provided no explanation for why it returned Rios and
Cason ahead of Carroll, who was reassigned to the court-
rooms full time only as the unfair labor practice hearing
in this matter drew near. Furthermore, the Respondent
has provided no explanation for why it did not reassign
COs Cason, Lizarraga, and Maldonado to work outside
the courtrooms instead of Carroll when they, like Carroll,
had all been working in the courtrooms for over a year at
the time the Respondent allegedly decided that someone
had to be reassigned so that other COs could receive
courtroom training.7
For the foregoing reasons, we agree with the judge that
the Respondent’s explanation for reassigning Carroll was
pretextual, and that the Respondent failed to show that it
would have taken the same action absent Carroll’s pro-
tected conduct. Accordingly, we adopt the judge’s find-
ing that Carroll’s reassignment violated Section 8(a)(1).
C. Cruz Mireles’ Discharge
On February 23, 2004, the Respondent discharged
Mireles allegedly for abandoning his post in the inmate
housing unit pod, lying about why he took that action,
using profanity during a morning briefing, and insubor-
dination. The judge found that the Respondent violated
Section 8(a)(3) and (1) by discharging Mireles because
of his union and concerted activities. The Respondent
contends that Mireles’ discharge was not discriminatorily
motivated but was instead based on Mireles’ misconduct,

7 Unlike Carroll, COs Cason, Lizarraga, and Maldonado were not
actively involved with the Union.
CORRECTIONS CORP. OF AMERICA 635
and further asserts that the activity for which he was dis-
ciplined was not protected by the Act. For the reasons
below, we agree with the judge that the Respondent
unlawfully discharged Mireles.8
1. Post abandonment
CO Alejandro Castillo was ordered to Warden Wag-
ner’s office on February 13. Believing that he was fac-
ing a disciplinary investigation, Castillo asked Ryan
Vaught, the officer in charge of the facility’s central con-
trol, to contact Mireles, as his union representative, and
have him go to the Warden’s office in administration.
Vaught called unit B, where Mireles was assigned as a
pod officer. Mireles, who was then relieving CO John
Donahue in the pod’s control unit, answered. Vaught
advised Mireles that Castillo wanted to see Mireles in the
Warden’s office. Mireles replied that he could not leave
until Donahue returned from his break because only two
other COs were on duty. When Donahue returned, Mire-
les informed him of his need to go to the Warden’s of-
fice. Mireles did not ask permission from a supervisor to
leave given that he had never sought it in the past.9
Donahue allowed Mireles to leave.
When Mireles arrived in administration, he saw
through a window into the Warden’s office that Wagner
and Chief of Security Semler were already talking to
Castillo. Unable to get Wagner’s attention, Mireles sat
and waited outside the office. When Wagner exited her
office, Mireles asked whether he was needed because
Vaught, from central control, had told him to come to
administration. When Wagner and Semler informed
Mireles that neither one of them had called him, he left.
While Mireles was away from his post, CO Neri per-
formed Mireles’ safety checks in unit B. At Wagner’s
request, Semler began an investigation into why Mireles
had left his post and assertedly had lied about who called
him to administration, based on Wagner’s account that
Mireles had stated that either Semler or “admin 4” had
called him to administration.

8 The judge found that Mireles’ discharge was also an independent
8(a)(1) violation. In light of our disposition of the other violations, we
find it unnecessary to pass on the judge’s finding because it is cumula-
tive and does not materially affect the remedy.
9 Each housing unit pod has a copy of the post orders, which cover
the pod’s rules and the COs’ responsibilities. Item “B” states that COs
“observe all activities on the post, and vacate the post only when prop-
erly relieved or instructed by a duly authorized supervisor.” Item H
states, “It is the COs’ responsibility to notify their supervisor when they
have not been provided the time or have not been properly relieved to
take any of their breaks” (emphasis added). COs Enrique Neri, Carroll,
and Mireles each testified that supervisors had affirmatively directed
that they not be bothered when an officer needed to temporarily absent
himself from the pod.
2. Use of profanity
About a week later, during the morning briefing on
February 21, Mireles noticed that his fellow COs were
not paying attention to Assistant Supervisor Barbara
Harper’s instructions regarding logging in and out. Up-
set by the employees’ behavior, Mireles stood up and
said, “This is bull shit. You guys need to pay attention.
She’s trying to make you understand how not to get in
trouble like I’m getting in trouble.”10 Later that day,
Harper admonished Mireles for his actions that morning.
She also mentioned the incident to her shift supervisor,
Jerome Williams. Williams, in turn, advised Semler,
whose investigation of Mireles remained pending at that
time.11
3. Refusal to fill out an incident report
According to Mireles, Senior Correction Officer Ro-
land Small asked him to fill out a “5–1C” incident report
within days of the morning briefing incident.12 Because
Mireles was busy with unit control duties when this re-
quest was made, he told Small that he would fill it out
later. When Small asked if he was refusing to complete
the report, Mireles responded that he would complete it
later. Small then left with the form. Small, on the other
hand, denied asking Mireles to complete an incident re-
port. Instead, Williams testified that he called Mireles
and asked him to complete a 5–1C incident report and
that Mireles responded, “I am not providing a 5–1C be-
cause [they are out to get me] anyway.” The judge found
it unnecessary to resolve these conflicting accounts, as
explained below, although he was inclined to credit
Mireles’ version.
4. Termination decision
On February 24, following Semler’s investigation, the
Respondent discharged Mireles. Wagner testified that
she based that decision on three factors: Semler’s rec-
ommendation that Mireles be discharged for post aban-
donment and for lying about why he took that action, the
admonishment concerning the morning briefing incident
together with Mireles’s refusal to complete an incident
report, and Mireles’ disciplinary history. According to
Wagner, Mireles’ post abandonment and refusal to fill
out an incident report about his use of profanity were
independent grounds for discharge.

10 Mireles denied stating, “This is fucking bullshit.”
11 Semler’s report is dated February 23.
12 Generally, COs are required to complete an incident report imme-
diately when asked to do so. An exception is made if COs are involved
in something critical; however, the COs must complete the incident
report by the end of their shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD636
5. Discussion
We find that the judge, applying Wright Line, supra,
properly concluded that Mireles’ protected activity was a
motivating factor in the Respondent’s conduct. There is
no dispute that Mireles was involved in union and con-
certed activities, including, but not limited to, responding
to Castillo’s Weingarten13 request for a representative
and serving as the Union’s acting president. There is
also no dispute that the Respondent was aware of such
activity. Furthermore, we find animus based on the
8(a)(1) violations discussed above.
The Respondent argues that it discharged Mireles be-
cause he engaged in several acts of misconduct. We
agree with the judge that these acts either involved pro-
tected conduct or were seized upon by the Respondent as
a pretext for ridding itself of the principal union leader.
The Respondent asserts that Mireles lost the Act’s pro-
tection when he used profanity during a morning brief-
ing. In determining whether an employee retains the
protection of the Act despite his use of profanity, the
Board balances the right of the employee to engage in
concerted activity with the employer’s right to maintain
order and control. See, e.g., New Process Gear, 249
NLRB 1102, 1109 (1980); Atlantic Steel Co., 245 NLRB
814, 816 (1979). We find that the balance here tips in
favor of finding Mireles’ conduct protected. Profanity
was commonly used at the facility by COs and supervi-
sors alike, and was used in the briefing room. Further-
more, Mireles’ single profanity was spoken while Mire-
les was serving in his role as a union leader and in an
attempt to protect his fellow COs. It was also uttered for
the apparent purpose of encouraging the COs to listen to
management’s instructions regarding logging rules,
rather than for the purpose of interfering with the con-
duct of the meeting, and it does not appear to have im-
peded in any way management’s efforts to communicate
its instructions regarding the use of logs. Accordingly,
we agree with the judge that Mireles’ limited use of pro-
fanity under these circumstances did not cause him to
lose the Act’s protection. See, e.g., Wal-Mart Stores,
Inc., 341 NLRB 796, 807–808 (2004) (employee did not
direct profanity toward his supervisors or other em-
ployee; rather, he used it to describe a new system in the
work process); compare Aluminum Co. of America, 338
NLRB 20, 21–22 (2002) (employee engaged in “re-
peated, sustained, ad hominem” profanity that was
“sever[e],” “vituperative,” and directed at supervisors).
Based on the credited evidence, we also agree that the
pretextual nature of the Respondent’s grounds for dis-
charge is clear. See Limestone Apparel, supra, 255

13 See NLRB v. J. Weingarten, 420 U.S. 251 (1975).
NLRB at 722. Thus, Mireles did not abandon his post,
as alleged. Both Vaught, the central control officer, and
Donahue, the unit control officer, knew that Mireles had
left his post to go to administration in response to a re-
quest that he do so. Indeed, Mireles specifically in-
formed Vaught that he had to wait for Donahue to return
before going to administration so that the unit could re-
main covered by a control officer and two COs. More-
over, while Mireles was away from his post, CO Neri
covered for him by making the necessary safety checks.14
The credited evidence further demonstrates that the
Respondent took advantage of this incident as an oppor-
tunity to get rid of the union president. Thus, Wagner
directed Semler to conduct an investigation of why Mire-
les had “lied” about who had called him to administra-
tion. Even if it was not clear exactly who had made the
request that Mireles attend Castillo’s disciplinary meet-
ing, it would have been obvious to all why Mireles had
been asked to attend the meeting. Further, as the judge
found, Semler’s expansion of the investigation appears to
have been prompted by a management directive to create
as large a paper trail as possible, and his exaggeration of
the acts of alleged misconduct also appear designed to
camouflage a discriminatory discharge.15 Simply put,
Semler was prompted to investigate Mireles for dis-
criminatory reasons, and the Respondent ultimately dis-
charged him for reasons that either were untrue or were
not, in fact, relied on. Under the circumstances, we find
that the Respondent violated Section 8(a)(3) and (1).16

14 We also reject the Respondent’s contention that Mireles also lost
the Act’s protection as a result of abandoning his post, as the credited
evidence shows he did not.
15 On this basis we agree with the judge that it is unnecessary to re-
solve conflicts in the testimony regarding Mireles’s claimed insubordi-
nation.
16 We also reject the Respondent’s argument that the judge erred by
barring it from presenting additional information on Mireles’ general
suitability for employment. The Respondent claims that, if it had
known at the time that information Mireles provided with his job appli-
cations was false, it would have disqualified him from employment and
that reinstatement and backpay are not appropriate remedies even if the
Board finds that it violated the Act by discharging Mireles. As found
by the judge, the information proffered by the Respondent was not
newly discovered. Mireles’ credited testimony establishes that he was
given clearance to work by then-Warden Reavis and then-Investigator
Chacone after he satisfactorily explained certain information provided
with his job applications which the Respondent now wishes to revisit.
Under the circumstances, we agree with the judge that Mireles’s suit-
ability for employment was “thoroughly vetted and that the Respondent
hired Mireles with full knowledge.” See Marshall Durbin Poultry Co.,
310 NLRB 68, 69–70 (1993), enfd. in pertinent part 39 F.3d 1312 (5th
Cir. 1994) (holding that it is the employer’s burden to prove that the
discriminatee engaged in misconduct for which the employer would
have disqualified any employee from continued or future employment).
CORRECTIONS CORP. OF AMERICA 637
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Corrections Corporation of
America, San Ysidro, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
Stephanie Cahn, for the General Counsel.
Richard R. Parker (Ogletree, Deakins, Nash, Smoak and
Grove), of Nashville, Tennessee, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in San Diego, California, on October 4–7, 2004,1
based upon a consolidated complaint issued June 17, by the
Regional Director for Region 21. The underlying unfair labor
practice charges were filed by International Union, Security,
Police and Fire Professionals of North America (SPFPA) (the
Union), on March 25 (later amended) and by Edward Carroll,
an individual, on April 21. The complaints were consolidated
on July 30. Together they allege that Corrections Corporation
of America (Respondent) violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
ISSUES
Specifically, the complaint alleges that Respondent trans-
ferred employee Edward Carroll from his duties as a court se-
curity officer to working as a guard in the prison pods because
of his union activities. Second, it alleges Respondent dis-
charged employee Cruz Mireles because of his union and pro-
tected concerted activities, including his attempt to represent an
employee during what objectively appeared to be an investiga-
tion of another employee’s misconduct, activity he was entitled
to perform under the Weingarten doctrine.2 Carroll and Mireles
were the Union’s only officials who worked at the facility. The
complaint also asserts Respondent during the time period in
question was in the process of encouraging its employees to
decertify the Union, stating it would know who supported de-
certification and who did not, implying a promise of benefit for
those who supported it. This is alleged as an independent
8(a)(1) violation.
Respondent denies all the allegations and contends that the
personnel actions it took were nondiscriminatory: Carroll’s
transfer was routine and Mireles had given it good cause for
discharge as he had abandoned his post and had used unaccept-
able language during a preshift meeting.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by both the General Counsel and Respondent, I make the fol-
lowing

1 All dates are 2004 unless stated otherwise.
2 See generally NLRB v. J. Weingarten, the 420 U.S. 251 (1975).
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Tennessee corporation having its principal
offices and headquarters in Nashville. In the course of its busi-
ness it operates this correctional facility near San Ysidro, Cali-
fornia, a border community south of San Diego. It admits that
during the12-month period ending February 13, 2004, a repre-
sentative period, it purchased and received at its San Diego
facility goods valued in excess of $50,000 directly from
sources outside California. It therefore admits that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. In addition, Respondent admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. BACKGROUND
Respondent contracts with public entities to operate private
prisons across the United States. The San Ysidro Detention
Center, known as Respondent’s San Diego Correctional Facil-
ity, operates pursuant to contracts with the U.S. Marshals Ser-
vice and the Citizenship and Immigration Service (formerly
known as the Immigration and Naturalization Service (CIS)).
At the facility, Respondent houses approximately 1500 inmates
and employs approximately 270 correctional officers. The in-
mates include individuals in the custody of the U.S. Marshals
Service who are awaiting trial, as well as individuals in the
custody of the CIS, who are alien felons who have served in
their prison terms elsewhere in United States and who are
awaiting deportation. It is considered a medium to maximum
security facility.
The prison consists of six housing units, each of which is
physically separated from the others. Most of the units are di-
vided into three housing ‘pods.” Depending on its size, each
pod holds between 68 and 100 inmates. The units and their
pods are identified by an alphabet letter. The B unit is the high-
est security unit, as it holds the U.S. Marshal prisoners. Women
are incarcerated in the J unit. On a routine basis, a correctional
officer is assigned to each pod. A fourth correctional officer sits
in a plexiglas center atop the three pods and has visual access
to most of each pod on the floor below. He is known as the unit
control officer.
At the time of the incidents described here, the chief execu-
tive officer of the prison was Warden Barbara Wagner. Her
staff includes two assistant wardens, the chief of security and
his assistant, the shift supervisors, assistant supervisors, and
senior correctional officers. The senior correctional officer is
generally considered the first-line supervisor. In addition, man-
agement is supported by a human resources officer and also has
access to a full-time investigator. The investigator appears to
report directly to the warden. His duties include investigating
all types of misconduct occurring within the facility.
During 2002, correctional officers Cruz Mireles and Edward
Carroll led an organizing campaign which resulted in a repre-
sentation election conducted by the Board. The Union was
certified as the correctional officers’ bargaining representative
on May 24, 2002. The Union chose not to create a local union
or conduct an election of local officers until a collective-
bargaining contract had been negotiated and the full scope of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD638
the represented employees/members could be determined. As a
result, the Union’s district vice president, Daniel Payne, desig-
nated Mireles and Carroll as the interim or acting local presi-
dent and vice president respectively. In addition to holding
those positions, both Mireles and Carroll served as bargaining
committee members while Payne sought to negotiate the initial
collective-bargaining agreement. Respondent, through Warden
Wagner and Investigator Myron Pitula, recognized that Mireles
and Carroll were the only union representatives on the staff.
The parties engaged in collective bargaining shortly after the
certification issued. According to Mireles, bargaining sessions
were held approximately twice a month, finally ending some-
time in October 2003. No agreement was reached even though
at one stage a Federal mediator was asked to assist. No bargain-
ing sessions were held thereafter.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent Encourages Decertification
In October 2003, because bargaining had not produced a
contract and because Respondent feared a strike might ensue,
Warden Wagner began conducting so-called bargaining update
meetings. Among other things she advised the employees that
the Union was not in their best interest; indeed, Carroll de-
scribed her attitude during these meetings as “hostile” toward
the Union. On October 8, 2003, Wagner sent a letter to each
employee at his or her home. In that letter she described a strike
as a “serious threat with which you and your family may soon
be confronted—a labor strike.” (Emphasis in original.) Despite
the fact that none of the employees was a constitutional mem-
ber of the Union, Wagner stated in her letter:
To the extent some officers choose to abandon their job
and go on strike, we will move quickly to fill those posi-
tions with permanent replacements (which will I will ex-
plain later). Union members, who cross a picket line and
come to work, may be subject to union fines or other dis-
cipline. So, Union members who do not want to strike and
want to continue working may wish to resign their union
membership. . . .
Wagner went on to detail the consequences of a strike, in-
cluding relatively accurately describing the limited rights held
by economic strikers concerning their right to return to their job
at the end of the strike.
About the same time, Wagner also began posting memos on
the bulletin boards and in the briefing room. General Counsel’s
Exhibit 3, a 4-page memo, was posted about October 6, 2003.
In that memo she contended that she had been fielding a lot of
employee questions and the memo would answer them. She
encouraged employees to ask additional questions, saying,
“This process is too important to all of us, our families, and the
future of our facility herein San Diego for us not to talk to one
another. To the extent I can, within the limitations imposed by
law, I will post the questions and answers.”
The first question the memo posed was “Who gets to vote
on the contract proposals/strike vote?” Her answer: “Only Un-
ion members who are in good standing with the Union are enti-
tled to vote, under the Union’s Constitution. (Art. XXXVII).”
This answer is misleading at best and a deliberate falsehood at
worst. The Union’s constitution has no bearing on a first con-
tract and none of the employees in the bargaining unit were, or
had become, union members. At the hearing, Carroll testified,
in contradiction, that all of the bargaining unit employees are
entitled to vote in such a circumstance, without regard to
whether they were the Union’s constitutional members.
Wagner’s second question was: “Do you have to be a mem-
ber of the union to sign a decertification petition or to vote in
any decertification election?” Her answer was: “No. Any bar-
gaining unit employee—in our case, any current correctional
officer—may sign a decertification petition and would be eligi-
ble to vote in any decertification election.” This was followed
by a short explanation repeating the answer but also stating that
whether an employee signed or did not sign the petition, or
whether the employee voted for or against keeping the Union,
or whether an employee was or was not a union supporter
would not affect how Respondent would treat him or her. This
appears to be the first anyone had mentioned decertification of
the Union.
Despite Wagner’s assurance that Respondent would not
treat an employee differently because of his support or lack of
support for the Union, the question is entirely based upon its
own self-interest, not the interest of the employees.3 Aside from
Wagner’s claim that she was answering an employee question,
there is no evidence that an employee had ever made such an
inquiry. As will be seen below, Wagner was not really answer-
ing any questions originating from an employee.
The next question was: “How can we get rid of the union?”
Wagner’s answer: “Employees may vote the Union out, just
like they voted the union in.” She then described the decertifi-
cation process. She said, “To start the process, at least 30 per-
cent of the correctional officers must sign and date a petition

3 In Auciello Iron Works, 517 U.S. 781, 792 (1996), in a slightly dif-
ferent context, the Supreme Court, through Justice Souter said:
Nor do we find anything compelling in Auciello’s contention that its
employees’ statutory right “to bargain collectively through representa-
tives of their own choosing” and to refrain from doing so, 29 U.S.C. §
157, compels us to reject the Board’s position. Although we take seri-
ously the Act’s command to respect “the free choice of employees” as
well as to “promot[e] stability in collective-bargaining relationships,”
Fall River Dyeing v. NLRB, 482 U.S. 27 at 38 (1987) (internal quota-
tion marks omitted), we have rejected the position that employers may
refuse to bargain whenever presented with evidence that their em-
ployees no longer support their certified union. “To allow employers
to rely on employees’ rights in refusing to bargain with the formally
designated union is not conducive to [industrial peace], it is inimical to
it.” Brooks v. NLRB, 348 U.S. 96, 103 (1954). The Board is accord-
ingly entitled to suspicion when faced with an employer’s benevo-
lence as its workers’ champion against their certified union, which is
subject to a decertification petition from the workers if they want to
file one. There is nothing unreasonable in giving a short leash to the
employer as vindicator of its employees’ organizational freedom.
The same can be said of an employer who seeks to induce its em-
ployees to oust their bargaining representative. The fact is, such an
employer cannot be seen as making a benevolent endeavor for its em-
ployees if it takes such a course. The employer has its self-interest to
watch over and those interests are not necessarily aligned with those of
its employees. As Justice Souter noted, the employees can take their
own steps to protect their interests if they choose.
CORRECTIONS CORP. OF AMERICA 639
saying they no longer want to be represented by the Security,
Police and Fire Professionals Union. Once at least 30 percent of
the correctional officers have signed the petition, it must be
filed with the local National Labor Relations Board office (pro-
viding the address and telephone number). That information
was followed by some relatively accurate facts concerning the
election process and the Act’s protection. She also made a
prophylactic statement to the effect that the Company could not
assist with the decertification process, and noted the limits on
the times and places for solicitation of signatures on the peti-
tion. She suggested that the employees act quickly because if a
collective-bargaining contract were signed, the right to vote the
Union out would be barred for the length of the contract (up to
3 years).
The memo concluded by referring the employees to a page
on the internet website operated by the National Right to Work
Legal Defense Foundation. That page provides a sample decer-
tification petition. Lastly, she repeated the telephone number
for the NLRB’s San Diego Resident Office.
Curiously, Warden Wagner denied that she had posted the
third page of the memo, the page in which she described the
decertification process. She testified that she usually initials the
documents she posts. She believed she did not post that page
because the copy she was shown was not initialed. (The page
had also been produced pursuant to the General Counsel’s sub-
poena.) Subsequently, an initialed version was provided to her
though it is not in evidence. Despite seeing her initials on the
page she continued to deny posting it. Given Carroll’s testi-
mony, I have no hesitation in concluding that Warden Wagner
posted the entire exhibit, including the Q and A described here.
On the fourth page, Wagner posed the question “How do I
resign my union membership?” She again stated that although
the Company took no position about maintaining union mem-
bership, that membership would not affect how the employees
would be treated, and that membership was the employees’
choice, they could resign by sending “at a minimum,” a certi-
fied letter to the Union resigning their membership. She then
provided the Los Angeles address and FAX number of David
Payne, the SPFPA’s regional vice president.
Item 4 on that page includes the following statement: “To
the extent the Company knows who does and who does not sign
a petition or support the Union, the Company would never use
that information to treat one officer different from another offi-
cer.” This sentence deliberately creates a duality in perception.
It seems to be a promise that the Company will not treat em-
ployees differently because of their union preferences or be-
liefs. At the same time, though, it states that it knows—to some
extent, at least—about the union sympathies and preferences of
its employees. By itself that suggests that Wagner has the
means to determine who would become involved in the decerti-
fication movement. Of course, she sees that movement as desir-
able and is, in the same breath urging the employees to take
those steps. Connected to that assertion is the logical conclu-
sion that Respondent would know who and who did not support
its effort to oust the Union. In essence, Wagner was saying the
Company could monitor employee participation in the decerti-
fication effort.
Wagner testified that the reason she posted the material was
because employees had asked her how to get rid of the Union.
In support of that contention Respondent offered the testimony
of employee Francisco de la Fuente, who had been hired in July
2003, more than a year after the Union was certified. De la
Fuente’s testimony, however, did not support Wagner; on the
contrary, he contradicted her. He testified that he had devel-
oped a complaint regarding the adequacy of Respondent’s
health plan and sought to speak to her about it, hoping to per-
suade the Company to offer additional and/or better plans. He
was unaware that the Union held representative status. When
he was hired, Respondent had offered him its then extant health
insurance plan. He initially gave some confusing testimony
regarding his understanding of the plan or plans available to
him, but then testified that Wagner told him that the reason
Respondent could not offer him any other plan was because the
Union had already “voted” for the existing plan. His testimony:
JUDGE KENNEDY: Okay. Tell me another—tell me
again what she responded to you.
THE WITNESS: To my original question, sir—
JUDGE KENNEDY: Well, yeah.
THE WITNESS:—was that, because of some issues,
some legal issues with the union, that she could not elabo-
rate on what was hanging over our heads, if you will, on
what decisions we could make as far as getting another
plan, as far as making decisions to, well, this is what I
want and this is what I don’t want, because it had already
been voted into place.
JUDGE KENNEDY: That’s what she—she said about
vote? Who said the—who made the reference about voting
into place?
THE WITNESS: Of the existing plan, sir, that the union
had voted that particular plan.
JUDGE KENNEDY: The union had done that?
THE WITNESS: Yes, sir.
If what de la Fuente said is accurate, Wagner’s statement to
him was a direct effort to undermine the Union’s representative
status. First, her statement was false. No union-negotiated
health plan was in place. The only health plan was that which
was provided by Respondent. Presumably, it had been in place
for a number of years. Second, in order to change the plan,
Respondent was obligated under Section 8(d) of the Act to
notify and bargain with the Union. Therefore, Wagner’s in-
sinuation to de la Fuente that the plan could not be changed
was misleading. Either way, Wagner’s purpose was not to edify
de la Fuente; it was to enlist him in her effort to undermine the
Union’s representative status. She was telling de la Fuente that
the reason he didn’t have an adequate health plan was because
of a decision made by the Union. de la Fuente never testified
that he had asked Wagner how to get rid of the Union. In fact,
he would not have done so because he was unaware that the
Union held representative status. Indeed, he testified that the
first time he had ever heard about the Union was when Wagner
responded to his question about the health plan’s adequacy.
Certainly de la Fuente’s testimony does not support Wag-
ner’s testimony that she posted (GC Exh. 3) in response to
employee questions. Moreover, Respondent offered no other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD640
employee testimony to substantiate her stated reason. In a very
real sense, calling de la Fuente for that purpose backfired.
Likewise, General Counsel’s Exhibit 4 does not assist Re-
spondent. It is Wagner’s January 9, 2004 bulletin board re-
sponse to a question supposedly deposited in Respondent’s
“Ask-It-Basket.” The question came from a conveniently
anonymous employee. The question itself tends toward the
pejorative. It begins with “Is there any way that CCA could
take in consideration what the majority of the CO’s [correc-
tional officers] really want and not what 2 military retired reps
have to say for approx. 210 officers.” It goes on to assert that
the two individuals don’t really represent the majority, but only
those employees who are retired military.
First, it should be noted that this supposed question is asked
in such a way as to split the “retired military” employees from
those who were not retired military. It is a classic wedge, sug-
gesting that the Union was favoring some employees over oth-
ers. Next, Wagner answered the question by once again observ-
ing that the employees had the right to decertify the Union,
taking the opportunity to observe that collective bargaining had
failed and that the employees had done well via an annual U.S.
Department of Labor wage determination, effective about a
week earlier. The last, of course, is an unvarnished claim that
the employees didn’t need union representation. She also gave
lip service to employee rights to have or not have union repre-
sentation. This source-less “Ask-It-Basket” story, like the mis-
characterization of de la Fuente’s purpose, cannot be accepted
as anything but a transparent effort to undermine the Union’s
representative status. Both the question, with its wedge, and the
answer are the product of Respondent’s union-ouster party line.
The Respondent has therefore presented no credible evidence
that any employee ever asked how to get rid of the Union.
When these two stories are melded with Wagner’s’ advice on
the memo’s third page regarding how to resign from the Union
and what steps were needed to file a decertification petition,
Respondent’s purpose has become clear: Respondent wanted to
end any obligation to continue to deal with the Union. To carry
out that purpose it had decided to implant sufficient fear, suspi-
cion, and rejectivity in its employees’ minds. The effort in-
cluded distorting the facts and creating a parade of horribles. To
de la Fuente Respondent blamed the Union for shortcomings in
its own health plan. To others it asserted that the Union would
call a strike without their having a say (only union members in
good standing are entitled to vote); that if they refused to join
the strike, the Union would discipline them. These were facts
Respondent knew were untrue. It then characterized a strike as
an economic calamity which would befall the employees’ fami-
lies. To avoid this perceived catastrophe, all the employees had
to do was listen to Respondent’s advice: get rid of the Union—
file for decertification or resign their union membership. Re-
spondent made it convenient for employees to take those steps,
providing the names and addresses where they should start,
including an advocacy group’s website which provided sample
forms.
While it can reasonably be said that a strike would have
economic consequences for all participants, Respondent was, at
the very least, premature. The Union had not even taken a vote
to strike and, so far as this record shows, it still has not done so.
Nevertheless, it chose to push its employees to begin the decer-
tification process.
B. Edward Carroll
Edward Carroll came to Respondent after a career in the
military. He was hired as a correctional officer in April 2000.
Initially, like all such officers, he began work as a pod officer.
In that capacity he normally worked the day shift, 6 days in a
row, with rotating days off. He projects a mature demeanor. In
May 2002, Respondent assigned him, and three others, to the
two newly constructed courtrooms within the prison. There
they were to serve as courtroom officers supporting the immi-
gration judges who conduct the deportation hearings held there.
A memo from Assistant Warden Charles Howard, dated May 1,
2002, stated that the four selected officers, Carroll, Cason,
Lizarraga, and Maldonado were to be “primary” court officers;
six others were to be “secondary.” In practice, the secondary
officers rarely performed that duty. In fact, only two of those
six, Rios and Wallace, ever worked in the courtrooms, although
an individual not listed at all, Priebe, was a regular courtroom
officer from January through June 2003.
According to Carroll, during a meeting shortly after his se-
lection, Assistant Warden Calderon informed the selectees that
their shifts would be Monday through Friday, with weekends
off. Furthermore, the secondary officers would replace them
only when they were unable to be in the courtroom due to other
requirements such as annual training,4 vacations, or off sick.
Carroll found the courtroom work to his liking. The 5-day
week, with weekends off, was a marked improvement over the
6-day rolling schedule that came with pod work. He also be-
lieved that courtroom work was more prestigious. Except for
scheduled vacations and training absences Carroll worked in
the courtroom during 2002 and 2003. On the two occasions
where he was absent to attend annual training, for scheduling
reasons and apparently to maintain familiarity with pod system,
he (and, apparently, the other primary courtroom officers) were
obligated to return to the pods for about a month after complet-
ing the training session.
On October 23, 2003, Carroll took leave for some knee sur-
gery. He was not cleared to return until January 14, 2004. Upon
receiving his medical clearance, he reported to Assistant War-
den Howard and Warden Wagner. The following day, Assistant
Supervisor Barbara Harper telephoned Carroll at home saying
that pursuant to instructions from chief of security, Earl Semler,
he would be returned to the pods upon his return to work.
Sometime after his return on January 20, Carroll spoke with
Semler who told him that working in the pods, rather than the
courtroom, had been Warden Wagner’s decision; she had ro-
tated Carroll out to train people for the courtroom. He did not
tell Carroll how long he would stay in the pods.
Semler testified that he had, shortly before Carroll’s return,
taken over the responsibility for the courtroom from Howard.
He said when Carroll returned he decided to rotate Carroll out
in order to train others for the duty, observing that Carroll had

4 Each correctional officer is required to take a 1-week refresher
class each year. That training requires the correctional officer to be
absent from his normal duties for that week.
CORRECTIONS CORP. OF AMERICA 641
been in the courtroom for about a year. When he was asked
why Carroll had been selected over the others, he simply said
he had to start somewhere. Carroll continued to work in the
pods from January until May 2004 when Semler and another
supervisor asked him about noon on a Friday to return to the
courtroom the following Monday. Carroll, relying on his rotat-
ing schedule, which had given him Monday off, had already
scheduled Monday and Tuesday for workmen to refinish some
flooring in his house, and had to decline. Semler did not assign
Carroll to the courtroom beginning that Wednesday, but con-
tinued to assign him to pod work until another officer, not iden-
tified, transferred to another prison. At that point Semler began
assigning Carroll on an irregular basis to the courts. Between
May and September he worked in the courts for less than 25
workdays. On September 23, Carroll received a message at his
home that he would be returning to the courtrooms. The follow-
ing day, it became official. Shift Supervisor Thomas gave him a
memo saying he would return to the courtrooms on September
26.5 Semler testified only that “[i]t was time for [Carroll] to go
back in.” It should also be observed that the reassignment oc-
curred about 10 days before the hearing opened in this matter.
Curiously, there is no evidence that Semler ever replaced
Carroll with any new officer. As the General Counsel has ob-
served, the evidence presented by Respondent, through Semler,
raises some analysis questions. Semler prepared a chart (R.
Exh. 28) showing courtroom assignments covering the period
January 2003 through September 2, 2004. One cannot tell from
the chart who took over for Carroll when he went on medical
leave in October 2003. The chart confusingly suggests that
Carroll continued to work in the courtrooms from early Sep-
tember until January 2004. (A note does observe that Carroll
was on medical leave.) According to the chart, the others who
worked during that time were Maldonado, Lizarraga, Wallace,
and Chapman. The chart shows that Cason6 stopped working in
the courtroom in early September, not returning until June
2004. It also shows that Chapman, a secondary officer, and
Samaniego also worked the courtrooms at times during that
period. When Cason came back to the courtrooms in June 2004,
so did Rios who had been out of the courtrooms since June
2003, according to the chart. The evidence also shows that
Chapman and Samaniego were removed from the courtrooms
near the end of May 2004 because they couldn’t get along.
All this raises the question of why Carroll hadn’t been re-
turned to the courtroom when he returned from his medical
leave in January. Semler’s explanation, that he sought to train
others, really does not stand up to any sort of scrutiny. The
chart certainly does not provide any explanation, since no other
officer is shown to have been assigned to the courts during the
October–December 2003 period. Chapman and Wallace, of
course, were originally secondary court officers. They seem to
have begun to work in the courtrooms in late December 2003.
In March, Samaniego replaced Lizarraga for a period, but
Lizarraga resumed in May 2004, displacing Samaniego. In

5 September 26 was a Sunday; accordingly, Carroll did not go back
to the courtrooms until Monday, September 27.
6 Cason was removed from the courtrooms some point during the fall
for having slept on the job.
June, Rios and Cason reappeared and Wheeler was assigned to
the courtrooms for the first time. During the entire time, from
January through September, Carroll for the most part remained
in the pods. This is truly curious since he was a primary court-
room officer. No specific officer had replaced him and indi-
viduals such as Samaniego and Wheeler seem to have been
there only temporarily. The chart, far from being helpful to
Respondent’s explanation, raises more questions about the
assignment procedures than answers. What is clear is that Re-
spondent (whether through Warden Wagner as Carroll recalled,
or Semler, per his claimed takeover of responsibility for the
courts) has provided no real explanation. Certainly Semler’s
assertion that he was training others rings entirely hollow since
no trainee can be seen on the chart.
Similarly, although Carroll eventually resumed his court-
room assignment in late September, Respondent offered no
explanation for its decision except for Semler’s thin “It was
time for [Carroll] to go back in.”
C. The Discharge of Cruz Mireles
1. Mireles is called to the administration offices
Cruz Mireles, like Carroll, is a retired military non-com. Re-
spondent hired him in April 2000 as a correctional officer. He
generally worked in the pods on the day shift, from 7 a.m. to 3
p.m. As with others on the day shift he routinely attended the
morning briefing where the shift supervisor, or an assistant,
would make announcements and assign the daily posts for each
officer.
As noted, Mireles was one of the principal union organizers,
was appointed acting union president, and served on the Un-
ion’s negotiating committee. He also authored a newsletter to
the bargaining unit members advising them of the status of
collective-bargaining negotiations. Among his duties as a
nominal union official, Mireles became one of the individuals
who was recognized as a Weingarten representative. Indeed, in
late January 2003 Warden Wagner spoke to both Mireles and
Carroll regarding what she thought were the appropriate proce-
dures they should follow as Weingarten representatives.7 Mire-
les’s official union status was well known to upper manage-
ment such as Wagner, Assistant Warden Charles Howard, and
the human resources officials who attended some of the collec-
tive-bargaining sessions. Similarly, Chief of Security Earl Sem-
ler and Investigator Myron Pitula knew Mireles’ union status
and duties.
On Friday, February 13, Mireles was routinely assigned to
work in unit B as the F pod correctional officer. Unit B, it will
be recalled, is the highest security unit at the prison. It is there
that Respondent houses about 204 U.S. Marshal prisoners

7 Respondent contends that at a January 29, 2003 meeting certain
protocols were reached regarding how Weingarten representation was
to be carried out. It points to its own minutes of that meeting (R. Exh.
12) as proof. Neither Mireles nor Carroll had ever seen those minutes
before the hearing, much less approved them. Even so, a review of that
document only demonstrates that Mireles and Carroll had simply
agreed that disciplinary meetings did not call for such representation.
The document does not reflect any nuts and bolts protocols such as how
Weingarten representatives would be called to such meetings from their
posts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD642
awaiting trial. There are 68 prisoners in each of the three pods.
There are four correctional officers assigned to unit B; three
pod officers; and one control officer. That day the other two
pod officers were Enrique Neri and Mark Thompson. The con-
trol officer was John Donahue. Donahue, in his plexiglass
perch, was positioned above all three pods and had visual over-
sight and electronic control of the entire B unit. In addition to
those four, Ed Carroll was assigned as the unit B rover. The
rover normally escorts inmates to and from videoconferences;
he is commonly away from the unit.
At 1:49 p.m., Donahue took a 10-minute break and asked
Mireles to relieve him. Mireles did so, leaving his pod and ad-
vising the other two pod officers that there were only two pod
officers for the three pods. This situation was an everyday oc-
currence. Under California law, employees in most industries
are obligated to take a 10-minute break twice a day.8 Whenever
that occurs the two remaining pod officers cover the other pod.
While Mireles was serving as the control officer, elsewhere
in the facility another correctional officer, Alejandro Castillo,
had been instructed to go to the warden’s office. Castillo was
not actively working (he was a transportation officer), but had
been in a meeting room undergoing some in-service training. A
few days earlier, Castillo had been involved in an incident in
which investigator Pitula had become involved. Pitula had ear-
lier asked Castillo to fill out a form known as a 5–1C. Castillo
did not know it, but Warden Wagner had determined to dis-
charge him over the incident. Indeed, earlier that day Castillo
had spoken to Mireles during lunch and had asked Mireles if he
had heard anything about the matter. Mireles responded he had
heard nothing.
In any event, Respondent had not informed Castillo about
the status of the incident. He did not know whether additional
investigation needed to be performed or whether a decision had
been made.9 Upon receiving the directive to go to the warden’s
office, Castillo passed by the central control station (which is
entirely secure from the outside) about 2 p.m. As he did so, he
paused to speak to the central control officer on the intercom.10
That individual was correctional officer Ryan Vaught. Castillo
asked Vaught to contact Mireles and have him to come to the
warden’s office. Vaught did so.
Vaught recalled he had opened the door to admit Castillo as
he passed on his way to administration. He remembered Casti-
llo speaking on the intercom, observing that he had been called
to the warden’s/investigator’s office, and that he was in some
sort of trouble. Vaught testified:

8 The state law concerning breaks was recently enhanced requiring
employers to provide written proof that a break had been taken. A
failure to keep records now results in 1 hour’s pay to the employee for
each unrecorded break.
9 CASTILLO: “[I] was reporting to the Warden’s office. I do not know
what for—investigation of an incident prior to—I think it was, on Feb-
ruary 6th, if I am not mistaken and I guess that is why I was report-
ing—”
10 The central control point is a post to which monitors all inmate
movement, radio traffic, alarms, and controls all entry and exit points
throughout the facility. It is operated by a correctional officer rather
than by anyone from supervision. Vaught was not a supervisor.
[Castillo] stated to me that, “Hey, I’ve just been called to
the warden and investigator’s office. I think I’m in trouble
for something. Can you locate Officer Mireles and have
him meet me?’ I then—I then asked Officer Castillo where
Officer Mireles was assigned to. He told me ‘Bravo unit.’
I then contacted Bravo unit by telephone. Officer Mireles
answered the phone. I then told Officer Mireles that Casti-
llo was requesting him in the administration office be-
cause he thought he was in trouble for something, and
Mireles said something to the effect, ‘Okay, I’ll make my
way downstairs then.’ And that was the end of our conver-
sation.
Mireles was not surprised that Castillo had asked for him,
given the unsettled nature of the then-pending investigation.
Before leaving his post, Mireles had to wait for Donahue to
return. He did not have to wait long and he says he told Dona-
hue that he was needed at the administration office. Donahue
had no problem and observed that two officers were still on
duty in the pods, Neri and Thompson. After Mireles placed a
personal article in his F pod locker, Donahue cleared him to
leave the unit and opened the appropriate doors. Mireles did not
seek a supervisor’s permission to leave. Such supervisory per-
mission had not been required previously.
Mireles then began to make his way to administration. To
do so, Donahue had to clear him through the unit’s staging area
and then he had to contact Vaught to open other doors and
sliders. Vaught permitted him to proceed by electronically
opening those entries and closing them behind him. Mireles
recalls the departure little bit differently, but the differences are
insignificant.
Indeed, although Mireles had participated in Weingarten in-
terviews on a few occasions before, the protocols had not been
clearly established. However, in the previous instances (ap-
proximately three) Mireles had been notified in the same man-
ner. The central control officer had contacted him in the unit
and the unit control officer had released him after making cer-
tain there were at least two other pod officers present. As noted
above, the same procedures were followed whenever an officer
needed to temporarily absent himself from the pod. This hap-
pened several times a day: the morning and afternoon breaks,
lunch, restroom trips, and the like. Supervisors were never
notified; indeed, there is testimony from Neri, Carroll, and
Mireles that the supervisors had affirmatively directed that they
not be bothered in such circumstances. In fact, the general post
orders state that supervisors are to be notified only if an officer
has been unable to take a required break.
The general post orders (GC Exh. 9) are inconsistent on the
point. Item I.B. states that an officer may “vacate the post only
when properly relieved or instructed by a duly authorized su-
pervisor.” Item I.H. (Breaks), after describing the need to take
lunch and midshift breaks, states: “It is the officer’s responsi-
bility to notify their supervisor when they have not been pro-
vided the time or have not been properly relieved to take any of
their breaks.”
Clearly officers vacate their posts to take breaks and being
“properly relieved” has two differing practices. When officers
cover for one another for breaks, they regard that (as the must,
CORRECTIONS CORP. OF AMERICA 643
for there is no alternative) as “proper relief” and it is done
without supervisory oversight. Yet “proper relief” at shift
change requires an oral status report (turnover) to the relieving
officer, together with a log entry.
Written log entries are also made to record some comings
and goings as well as nonroutine events which warrant a record.
Before the incident in question here, and before the state began
requiring records of lunches and breaks, officer comings and
goings were not recorded with great care. The practice was not
haphazard, but neither was it uniform. Some officers were more
assiduous than others. After this incident, Respondent began
enforcing the post orders more strictly.
During the few minutes it took Mireles to arrange his ab-
sence and walk to the administration offices, Castillo was meet-
ing with Warden Wagner and Chief of Security Semler in the
warden’s office, behind closed doors. It is undisputed that dur-
ing the meeting, Wagner discharged Castillo. That process
began sometime after 2 p.m. and lasted approximately half an
hour. The first thing Castillo did when he arrived was to ask for
a union representative. He wasn’t sure if Mireles would be able
to get there before the discussion started and he wanted to wait.
Wagner denied him the right to have such representation, prin-
cipally because she knew the meeting was not investigative, but
disciplinary, although it is unclear whether she explained her
reasoning to Castillo. Under the Weingarten doctrine her denial
was lawful. Weingarten does not extend union representation to
circumstances where the discipline has already been deter-
mined. Even so, Castillo’s request should reasonably have
given Wagner and Semler some inkling that Castillo had ini-
tially perceived his summons to the office in a manner different
than they.
Mireles describes what he did upon his arrival in the recep-
tion area:
[W]what I did was, when I first got in there in the admin of-
fice, I noticed that the doors were closed to the warden’s of-
fice and what I did was I looked. You can see through one of
the little windows on the door and there’s another window to
the side of it, but the shades were kind of drawn. When I
looked inside, I saw Mr. Semler, the chief of security, Officer
Castillo in the front, facing the warden, and the warden was
sitting behind her desk, facing the door. It seems that the
meeting had already started. I knocked on the door and
I didn’t get a reply, so I think I—I’m pretty sure I knocked
again and the next thing I saw was Ms. Wagner basically
looking down at the sheets of paper and waving my [sic]
hand, like this, like to go away, but she didn’t once look up to
see who it was.
Confused, Mireles then sought assistance from one of the
clericals, who also tried the window unsuccessfully and then
used an intercom phone to contact Wagner. The result was the
same; Wagner declined to respond. As a result, Mireles took a
seat in reception area and waited. After some time passed, at
least 20 minutes, the warden came out, apparently to use the
copy machine, and Mireles asked her if he was needed. She
asked him who had called him there. He says he replied, “Cen-
tral Control.” She responded that she hadn’t called him and
then asked Semler if he had done so. Semler said no.
Warden Wagner testified that Mireles told her that he had
been called either by “Chief Semler” or “admin 4,” a radio code
for the security chief. Semler gave similar, but slightly differ-
ent, testimony: “When I asked him who told him that I called
him to the scene he informed me that the Control Center told
him.”
In context, neither Warden Wagner’s testimony nor the cor-
roborative support given her by Semler makes any sense. In
fact, Semler partially supports Mireles, here, putting control
center in the middle of the process. There would be no need for
Mireles to claim that Semler had called for him. He knew Sem-
ler had not; it had been Castillo through Vaught. From Mire-
les’s point of view, there was no need to lie. Insofar as he
knew, he had followed a routine procedure. There was nothing
to lie about.
After some discussion, Semler told Mireles to return to his
post. As Mireles made his way back he encountered Supervisor
Roland Small who asked him if they were done with their
breaks in unit B. Mireles replied that they were, whereupon
Small instructed him to go to unit J and relieve the unit control
officer there so that unit’s officers could take their breaks. Fol-
lowing Small’s directive, Mireles went to unit J and logged in
at 2:50 p.m. He remained at unit J until he was relieved shortly
before the end of the shift. He returned to unit B at 3:30 p.m.
just as his relief officer was signing in on the logbook. He says
he turned F pod over to that officer and then left for the day.
In the meantime, shortly after Mireles had responded to
Vaught’s call for him, Neri had become aware that Mireles was
not in his pod. He spoke about it to Donahue, learning that
Mireles had gone “downstairs.”11 Thereafter both Neri and
Thompson covered Mireles’ F pod in the routine manner they
normally did during a fellow officer’s absence. Nothing out of
the ordinary occurred during that entire timeframe, from about
2:10 to 3:30 p.m. Had Supervisor Small not diverted Mireles to
J unit, Mireles’s absence would have only been about 35–40
minutes. Due to that diversion, he was gone from his unit B
post for 80–85 minutes.
2. Respondent conducts an investigation
As soon as Mireles left the office area to return to work,
Warden Wagner directed Semler to investigate why Mireles
had come to administration. She also wanted to know why
Mireles had said that Semler/admin 4 had requested him to be
there. Semler proceeded to do so, collecting witness statements,
using the 5–1C forms.
Almost immediately Semler asked Central Control Officer
Vaught if he had called Mireles to administration. Vaught re-
plied that he had done so pursuant to Castillo’s request. Semler
also asked Vaught if he had called a supervisor before doing so.
Vaught responded that he had not. The following Tuesday,
February 17, Semler asked Vaught to fill out a 5–1C concern-
ing how and why he had called Mireles to administration.
Vaught did so; in that statement he said that Castillo had asked

11 Donahue did not know how long Mireles’ meeting would take. He
may not have immediately informed Neri and Thompson of Mireles’
absence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD644
Mireles to meet him in Pitula or Warden Wagner’s office. After
Semler finished reading Vaught’s 5–1C, he asked Vaught to
add another sentence: “At no time did I tell CO Mireles that
Chief Semler requested him in the administration offices.”12
Semler concluded his meeting with Vaught by telling him that
in the event anything like that happened again he should first
call a supervisor before clearing the employee to leave his post.
Vaught was not disciplined over the matter.
Until Friday, February 20, Mireles was unaware that the in-
cident was being investigated. That day he received a directive
to go to the administration office. After being relieved, leaving
two officers in the pods as before, he went to Investigator
Pitula’s office. When he arrived both Pitula and Semler were
there; shortly thereafter a human resource officer named Frank
joined them. Semler then directed Mireles to write a 5–1C con-
cerning what happened on February 13. Mireles, unclear re-
garding what was wanted, replied he could not recall every-
thing that happened on that day, then a week past. Semler then
demanded to know who had given Mireles permission to leave
his pod that day. Mireles answered he had not asked for per-
mission from a supervisor; that he had never needed permission
before, so long as two corrections officers remained in the unit
together with a control officer. Semler told him to fill out a 5–
1C.
It was not until Semler insisted upon an immediate 5–1C
that Mireles realized he was under investigation for having
abandoned his post and might be subject to discipline. He then
turned to the HR officer, Frank, and told him that what they
were doing was wrong. Frank declined to speak and shortly
thereafter left the meeting.
At this juncture, it is appropriate to observe that Semler
generally does not permit any person being required to fill out a
5–1C time to think about it. He insists the document be filled
out then and there.13 As an investigative technique this has
both advantages and disadvantages. The principal advantage is
that a witness is more likely to be candid since he or she does
not have sufficient time to think of a lie. The disadvantage is
that the witness is often forced to write too quickly about a
situation that may require more detail than can be provided on
such short notice or that the witness becomes disconcerted and
unable clearly to understand what is being asked for and there-
upon omits significant facts; indeed, whenever witnesses do not
understand what is being sought they may write an irrelevancy
which risks being misinterpreted. Beyond that, unless the writer
has some idea of what information is being sought, he really
has no way to answer intelligently.
Here, Mireles became somewhat disconcerted. He had no
idea that he had done anything wrong. All he could see was that
Semler was pursuing him, even pressing him. Semler had con-
tinued to demand to know what supervisor had sent him; and he

12 Vaught’s 5–1C is the third attachment to R. Exh. 27, Semler’s in-
vestigative report.
13 An exception might be permitted if the person was engaged in
something critical; even so, that person would be required to fill one
out by the end of his workday. This circumstance seems to have been
rare.
had continued to respond that central control had called him
and that he had been properly relieved when he left.
Upset, Mireles proceeded to fill out the 5–1C. In its entirety
it states, “I was working in B/F [unit B, pod F] when I was told
by control to go down to the warden’s office, and that CO Cas-
tillo wanted me down there. I was relieved by another pod offi-
cer. And I came downstairs and was relieved by other officer
(sic) any other pods in the B unit.” In this connection, Semler
testified that during the course of his investigation Pitula had
told him that he also utilized central control to contact Mireles
on the occasions where employees had asked for union repre-
sentation. Usually that happened after Pitula first contacted the
supervisor. [In a testimonial anomaly, Pitula testified that he
did not know what steps supervisors utilized to call the union
representative to his office when he requested their presence.]
Semler then began to canvass other employees and supervi-
sors. These included Correctional Officers Thompson, Neri,
Carol, and Donahue. He also obtained statements from several
other individuals such as Supervisors Williams, Thomas, and
Small and the secretary to Warden Wagner, Beverly Soria.
Wagner herself provided two memoranda (both listed as at-
tachment 9 to Semler’s investigation report).
Many of these statements demonstrate the shortcomings of
Semler’s approach in requiring 5–1C’s without direction. Neri
is a good example. In this instance Semler initially delegated
the duty to Assistant Warden Clover. Neri recalls that on Feb-
ruary 20, Clover came to him with a blank 5–1C directing him
to write any incident that happened on February 13. Neri
couldn’t remember February 13, from any other day and asked
for a copy of the daily log for that day. Clover told him he
couldn’t see it and directed him to write what he remembered.
In the 5–1C Neri complained that he couldn’t remember much
about February 13, without a logbook. He wrote “I can’t hon-
estly say if I ever was in the control room on 13 Feb 2004. I
have no recollection if I received and or made a phone call . . .
.” Apparently because he complained about his inability to
review the logbook, Semler met with him later and showed the
February 13 log entries to him. Neri testified Semler asked him
if he thought it strange that Mireles had been gone for over 2
hours.14 Neri replied that such a situation was pretty normal
given the fact that they were understaffed. Neri’s testimony is
in the footnote.15

14 Semler was exaggerating here.
15 NERI: “He asked me pretty much is those my log entries, why
didn’t I log in, and it’s like, well, I’m just taking over the log entries,
I’m not taking over his pod, Mr. Mireles hasn’t left the facility yet.
After that, he’s writing notes on paper. I’m not too sure what he was
writing on, but the main question that he asked me was wasn’t it
strange that he was gone for over two hours. At the time, we were still
so understaffed that it was normal for an officer to be gone for over a
long period of time, especially, if that our last officer was relieving the
control officer for lunch. That was an automatic one hour minimum
that he was going to be gone prior for him to coming back to the floor
and assuming his own log entries . . . I pretty much answered all his
questions and just told him that it was normal at the time to be gone for
so long periods of times.”
CORRECTIONS CORP. OF AMERICA 645
Donahue is the only witness with percipient knowledge who
was not called to testify. Semler’s report includes a 5–1C writ-
ten by Donahue which is undated. In its entirety it states: “I CO
J. Donahue do not have any recollection of anyone calling or
notifying me to send CO Mireles to Admin office while I was
posted in B unit control on Feb. 13, 2004.” He added a post-
script: “I do not recall telling CO Mireles that he was wanted in
Admin.” Since Donahue did not testify, there is no record evi-
dence regarding the manner in which the 5–1C was adduced;
nor is there any explanation for how the postscript came to be
added. One cannot know whether Donahue was ever asked if
Mireles had told him he had been called to the office or
whether he said the call was from central control. However,
Semler already knew from Vaught that Vaught had done so
upon Castillo’s request. In any event, as counsel for the General
Counsel notes in her brief, Donahue’s 5–1C does not support
Semler’s later conclusion that Mireles left the unit without
Donahue’s knowledge and tacit approval. Indeed, how would
Mireles have been physically able to get to the staging area
without Donahue’s assistance?
Nevertheless, Semler, disingenuously in my opinion, came to
believe that no telephone call had been made to Mireles calling
him to administration. Being kind to his version, Semler seems
to have confused “unit control officer” with “Central Control
officer.” Mireles had said in his 5–1C that he was told “by con-
trol” to go down to the warden’s office. As Mireles explained,
he was speaking of a telephone call which came to him from
Vaught, the central control officer. He certainly was not writing
about anything Donahue had said or done. Indeed, he had been
serving as the unit control officer at the time Vaught called unit
B. Semler knew that, particularly given the fact that Vaught had
acknowledged making the call and reaching Mireles. Semler’s
testimony is a bit strange on the point, because he asserts that
Mireles “had informed me that he hadn’t personally received a
phone call, but his control center officer told him to report
down there.” Similarly, but slightly different, is Semler’s re-
port: “Mireles” first statement was that he was told by his con-
trol officer to go to the Warden’s office. He denied taking the
telephone call from Central Control. Neither assertion is true.
Mireles had received the phone call and he had received it from
Vaught. Both he and Vaught so testified and Vaught clearly so
stated in his own 5–1C. The only ambiguity which can be
found here is in Mireles’s 5–1C where he doesn’t describe sig-
nificant “control” as the central control. There could have been
no confusion over his usage since he himself was the unit con-
trol officer at the time the call was made and Semler should
have understood this, if from nothing else, Vaught’s statement
that he had called Mireles in unit B, because pod officers do not
have direct phone call capability. Moreover, the logbook should
have given him reason to believe that Mireles had been serving
as the B unit control officer at the time the call was made. Cer-
tainly, Donahue’s inability to recall, as set forth in his 5–1C
does not mean that Donahue was unaware that Mireles had
gone to administration or that Mireles had been called there by
central control.
One wonders what sort of interview Semler conducted with
Donahue. Did he simply demand that Donahue write his recol-
lection without any prior discussion of what had happened?
Furthermore, there is no showing when the interview occurred;
Donahue’s 5–1C is undated. How much time had passed be-
tween incident and the request? Was that before or after
Vaught’s 5–1C on February 17? Was it before or after Mire-
les’s 5–1C on February 20?
Semler’s conclusion, that Mireles did not inform his fellow
officers that he was leaving the unit, set forth in the conclusion
paragraph of his investigation report, is not supported by the
facts set forth therein. Indeed, the facts demonstrate that Semler
knew or should have understood that Donahue knew Mireles
had left to go down to administration.
Semler’s next conclusion is that Mireles lied when he told
Warden Wagner and secretary Beverly Soria that he been
called to the warden’s office by Semler. This conclusion, too,
fails the logic test.
It is true that both Warden Wagner and Secretary Soria
stated both in their investigatory documents and later in testi-
mony that Mireles told them that Semler or admin 4 had called
him to the office. Semler, who was there at the time, knew he
had not done so and also knew Mireles had said central control
had called him. More importantly, Mireles never thought Sem-
ler had called for him. Aside from Castillo, Mireles did not
know which, if any, manager was involved. Even if at some
point he speculated that such a manager was Semler, his specu-
lation would have been clear. But it is unlikely that such a
speculation took place. Since Mireles had been coming to the
office in response to a Weingarten request, any speculation
would more likely have targeted Pitula, the investigator or pos-
sibly Warden Wagner. The likelihood that Mireles referenced
Semler in some manner is zero; Semler was not on the radar.
Mireles had no need to make such a claim and would not have
done so.
This raises the question of why Warden Wagner said that
Mireles did claim Semler had called for him. She did so in both
her February 13 memorandum and her February 16 version.
She also gave testimony consistent with the two memoranda.
Either she misunderstood Mireles or she lied. I am also unim-
pressed with Soria’s supporting testimony since her 5–1C was
not given until February 20, and there is no testimony or expla-
nation regarding what she had come to believe and how she
came to believe it. I think she now believes it to be true, but in
all probability she had heard Wagner’s version a sufficient
number of times to have come to believe it to be accurate. Cer-
tainly she is in no position to challenge such a powerful boss’s
view of things.
Wagner’s version is not, and cannot be considered, trust-
worthy. There are several reasons for my conclusion. First, she
was aware that Castillo had, prior to their discussion, asked for
a Weingarten representative. She knew Mireles served in that
capacity. When she exited the door to go to the copy machine
and encountered Mireles, she knew even before Mireles spoke,
that the very person Castillo had asked for had appeared. She
also knew that someone had been trying to get into the office,
but she had waved that person away. Most likely there was a
connection between Mireles’ unexpected presence and the per-
son attempting to interrupt the meeting. Furthermore, she
agrees Mireles approached her and asked if she needed to see
him. She knew then that Mireles believed he had been sum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD646
moned (if not by her, by someone else in that area). Despite
these clues, she says she did not connect Mireles’ Weingarten
duties to the Castillo meeting. This was probably because she
knew the meeting was not investigatory, but disciplinary, and
that Castillo did not have a right to union assistance in that
circumstance.
This is consistent with Mireles’s testimony: “Well, when
Ms. Wagner came out of the room, I asked her, I says, ‘Excuse
me, ma’am, am I needed here?’ And she goes ‘No, I didn’t call
for you, who called for you?’ I said ‘Central Control told me to
come down here. I was told by Central Control to come down.’
‘Well, I didn’t call for you.’ And that’s when she looked at Mr.
Semler. Mr. Semler came out of the warden’s room and said ‘I
didn’t call for you, who called for you?’ And I said ‘Central
Control told me to come down.’ And that’s all I—that’s all he
kept saying was ‘who told you to come down here?’ And that
was Mr. Semler. And he goes, ‘Well, we don’t need you here.’
I said, ‘Okay, fine. So I walked back. . . . ”
Clearly Mireles’ answer was accurate as far as it went. For
some reason, even though he knew it was Castillo who had
called for him, he did not say so. I believe, given the quasi-
military atmosphere and his long military training, he answered
the question as put, rather than attempting to explain. From his
point of view, someone in administration knew why he was
there. He did not need to explain. He no doubt thought Castillo
had followed procedures and that someone in Administration
was aware of it. No one asked the obvious question: “Why are
you here?”
I find that this circumstance led to a grave misunderstanding.
It was exacerbated to some extent by Warden Wagner’s sup-
posedly misunderstanding him to say that Semler had called for
him. She should have understood from Semler’s reaction that
he had not done so and that Mireles had not said that he had.
Mireles’ only claim was that Central Control had sent him.16
Semler had nothing to do with it. Instead of taking a moment to
examine the situation a little more carefully, Wagner directed
an investigation. (WAGNER: “After Mr. Semler finished with
Mr. Castillo, taking him over to—turning him over to human
resources, I asked Chief Semler what he thought Mr. Mireles
had come down here for and why—you know, if he had not
called for him, why was he in this area? I asked him where was
Mr. Mireles working that day that he could be down in the ad-
ministration building at that time rather than on his post. And
Chief Semler indicated he didn’t know, but he would go find
out. I asked him—Mr. Semler, to check it out and find out what
occurred why Mr. Mireles showed up telling us that Chief Sem-
ler or Admin Four had called for him when, in fact, he had
not.” (Emphasis added.)
In the time it took for Semler to take Castillo to human
rsources and return, Wagner had done some thinking. Upon his
return, significantly, Wagner put two questions to Semler: why
had Mireles come to administration and why had he lied about
who had called him. This conflation of issues is telling. If the
first question was satisfactorily answered, the second would be
recognized immediately as someone’s mistake, assuming Wag-
ner’s claim that Mireles lied is not itself fabricated. Neverthe-

16 Did Wagner mishear, mistaking the word “Central” for “Semler?”
less, her question asserts as a fact that Mireles had lied. Given
that starting point, what other conclusion could Semler have
reached? Moreover, wasn’t that a signal to Semler regarding
the finding she wanted made? It denied Semler the option of
finding that a misunderstanding had occurred.
It should be observed at this point that the entire incident is
intertwined both with Wagner’s efforts to undermine or other-
wise get rid of the Union. Wagner had begun her effort to in-
duce a decertification petition in early October 2003 and her
effort can be seen as ongoing as recently as January. One union
official, Carroll, who Wagner undoubtedly had hoped would
not return after some surgery in October 2003, had reappeared
for work only 3 weeks earlier.17 Furthermore, the decertifica-
tion petition, Case 32–RD–2772 must have been in the works.
Although the petition was not filed until March 19, as Wagner
had suggested in one of her postings, she would likely be aware
of such a movement. After all, she was attempting to ignite it.
Accepting, as she implied, that she had a good ear for what was
happening in the facility, it seems likely that she was aware that
steps were being taken to perfect such a petition. Clearly, if she
could justify ridding the prison of one of the union officials,
such a step would assist her in reaching the goal of ousting the
Union. Furthermore, it seems fairly clear that she did not want
the Union to succeed in its representational duties, specifically
Weingarten responsibilities. She simply did not want to allow
the Union to portray itself as having been successful in any
way. Accordingly, it is no great step to conclude that Wagner
quickly saw that she might be able to characterize Mireles’
appearance at the administration office on February 13, as
some sort of misconduct. It was an opportunity to get rid of an
individual whose organization was regarded as a hindrance.
Having such a mindset explains why she gave Semler the
pointer she did. Likewise, the conclusions which Semler
reached are unsurprising given Wagner’s instantly conceived
stratagem.
However, Semler’s investigation provided additional fodder
for the discharge. Most of it was makeweight. For example,
Semler determined that no supervisor had authorized Mireles to
go to administration. In large part, of course, the observation is
an irrelevancy. Semler knew Vaught had called for Mireles. He
also knew that an instruction from Central Control carried its
own authority, being a normal supervisory relay. He knew
Vaught had made the mistake, but that Mireles could be sad-
dled with it. Similarly, he knew Mireles had left the post with
Donahue’s knowledge—if only to permit Mireles to exit the
unit. Nevertheless, he wrote that Mireles had left without the
unit control officer’s knowledge. This was a distortion of the
actual situation. We know, for example, that shortly thereafter,
Donahue told Pod Officer Neri that Mireles had gone “down-
stairs” and Neri immediately began to cover Mireles’s F pod in
the routine way he always did when one of the three pod offi-
cers had to leave. Furthermore, Semler said Mireles had left his
post without formally being relieved. Yet, what Mireles had
done was routine. He knew Donahue would see that his pod

17 Carroll, it will be recalled, had come back to the facility with his
certificate of fitness on January 14. Respondent put him back to work
in the following week, on January 20.
CORRECTIONS CORP. OF AMERICA 647
was covered. All three of those officers testified it was normal
for two officers to cover the three pods temporarily. Mireles left
with the knowledge that the routine would be followed.
Despite learning those facts, Semler found Mireles at fault
for following these regular practices. And, it is true that the
standing post orders, somewhat contradictory, could be inter-
preted to bar the routines which these, and apparently most, pod
officers were following. It was not until after this incident that
management began to crack down. Yet the practices were stan-
dard operating procedure when the incident occurred. Making
Mireles the fall guy for following procedures that were widely
tolerated, if not encouraged, seems extreme when lesser man-
agement tools (e.g., admonishment and/or staff memo modify-
ing the practice) were available. Discharging an employee for
what was not regarded as an infraction suggests that another
motive was in play.
But Semler was not done. He concluded his report by saying
that Mireles had remained in “lower administration for thirty
minutes or more, then did not return to his unit until almost
1500 hours (3 p.m). He left his pod vacated for over an hour.”
As I parse what he wrote, I must observe that it is inaccurate
in several ways.18 The thrust of his conclusion (allowing for
some credit to Mireles for being sent to unit J) is that he had
somehow spent “thirty minutes or more” in lower administra-
tion and “left his pod vacated for over an hour.”
While almost true, it unnecessarily inflates the situation be-
yond fairness. First, it does not give Mireles credit for the pe-
riod of time between Donahue’s apparent return at about 2 p.m.
(Mireles had assumed Donahue’s unit control post at 1:49 p.m.
to cover Donahue’s 10-minute break) and when Mireles actu-
ally departed for administration. That clearly took 5 minutes or
so. And we need to allow for the time he spent in the office
waiting for a resolution of his summons. Small reports that he
encountered Mireles at about 3 p.m, but the J unit log (GC Exh
16)19 shows Mireles to have logged in there at 2:50 p.m. Allow-
ing time for Mireles to depart lower administration, encounter
Small, respond to Small’s inquiry and walk over to unit J would
seem to have taken about 10 minutes. Thus, he must have en-
countered Small at 1:40 p.m. or earlier. This would mean that
Mireles’s absence from unit B would be in the neighborhood of
40–45 minutes. I suppose it might be said that Semler’s “over
an hour” exaggeration is not very great. Still, it demonstrates
that Semler is willing to stretch matters in order to put the
strongest face on his report for Warden Wagner. It is a subtle
effort to strengthen an otherwise weak case.
3. The briefing room incident
As noted earlier in this decision, at 7 a.m. each morning,
Respondent’s supervisors conduct a preshift meeting. The
meeting is usually led by the shift supervisor or his assistant.
Normally, about 40 correctional officers, together with other
supervisors, attend. On February 21, Assistant Shift Supervisor
Barbara Harper was in charge of the meeting. She advised the

18 Oddly, some of Semler’s inaccuracy actually favors Mireles, i.e.,
Semler’s statement that Mireles returned to his unit at 1500 hours (3
pm). Mireles actually did not return until about 3:30, having been oc-
cupied in unit J until pursuant to Small’s instruction.
19 The copy of the log attached to Semler’s report is illegible.
staff of their assignments for the day and then turned the meet-
ing over to Senior Correctional Officer Roland Small. She says
he was speaking to the staff about the necessity for officers to
identify themselves properly on the intercom when speaking to
the control center. She said that Mireles interrupted Small’s
remarks in a disruptive way. According to her, “he cursed, he
used the F word, ‘listen up, listen to what he is telling you. I am
under investigation for abandoning my post.’ He got to, ‘if you
are pulled from your assignment make sure you call your su-
pervisors. . . .” She asked Mireles to stop at that point and he
did so. She also testified that when Mireles made his statement
that there was an audible reaction from the group—she de-
scribed the reaction as “oohs and aahs.”
Small’s testimony is only a little different. Small testified
that he was in the process of explaining that officers who were
leaving their unit needed to perform a “pass down” similar to
the sort of formal relief “pass down” which occurs at the be-
ginning and end of each shift. This change would require a log
entry to be made. He remembers being interrupted by Mireles.
Small said: “As I was giving that instruction out, some of the
officers came back and said, ‘well, they are letting us out with-
out—they are letting us out without—’ they asked the question
and I was explaining to them that you got to notify them and
Mr. Mireles jumped up, got excited and said, ‘Listen to what
the fuck he is saying because they are trying to get me’ . . .
Everyone was startled that he was doing that.”
Mireles testified that it was Harper who was speaking at the
time he interrupted. He remembers Harper
[Started] to talk about it, the briefing, she started to mention
about that we are weak in our logbook entries, that certain
things are happening we need to brush up on, we need to do
make sure that we do proper entries, times, and dates. And, at
that time, I noticed that everybody was kind of like not paying
attention to her. They were more or less just grabbing (sic)
[gabbing]—just looking at each other and not paying attention
at all and it upset me very much and I stood up and I said
“This is bull shit.” I said “You guys need to pay attention.” I
said “She’s trying to make you understand how not to get in
trouble like I’m getting in trouble.” And everybody just basi-
cally stopped and you could hear a pin drop. And, at the same
time I was saying everything, I could see Ms. Harper kind of
like shaking her head up and down, saying kind of like, to me,
it was agreeing with me.
Correctional Officer Enrique Neri remembered that the su-
pervisors were speaking of logging in and logging out when
Mireles spoke. His testimony:
Q. [BY MS. CAHN) . . . And at this meeting do you re-
call if Cruz Mireles spoke up?
A. [WITNESS NERI] I recall he spoke up and was di-
recting everybody, not just one person in the room, about
logging in and logging out of your books because he was
being investigated about it. He was under investigation for
the not logging in and logging out.
Q. Do you remember exactly what Cruz Mireles said
at that meeting?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
A. It’s just in general that saying log in and log out,
I’m under investigation for this stuff, and, as far as if like
you use [sic] [he used] profanity or not, I’m sure he used a
word or two. I just can’t—the exact word I don’t know.
Q. Do you recall what word it might be?
A. I recall it might be shit or another word like, you
know, bull shit or something like that. But just the shit part
is the part I remember that he did, you know, say some-
thing in that manner, but it wasn’t in a—it wasn’t directed
at nobody. It was just a general sentence that everybody
knew what he was talking about. Not directed at anybody.
Just broad.
Q. And what happened after Cruz Mireles said this?
A. After Cruz Mireles said it, everybody was listening,
he said that he finished what he was going to say. He sat
down.
On cross-examination, Neri acknowledged that Mireles’s
language may have been more coarse. He said:
Q. [BY MR. PARKER] Right. And you indicated that
you heard him say shit. Is that right?
A. Shit or other words connected. I don’t know if it
was bull shit or fucking shit or whatever, but the word shit
came. That’s one of the words I recall.
Q. So it could have been fucking shit?
A. I could have been anything. The exact word I don’t
know.
Q. You don’t remember?
A. No. Like I say, profanity, yes. The exact word, the
exact saying, the exact sentence—
Q. So you would agree—
A.—I wasn’t writing nothing down.
Q. So you would agree that it was profanity, but you
just can’t remember all the words?
A. No. I can’t remember the whole sentence itself.
Ed Carroll was also present during this incident. He testified
that the correctional officers were not paying much attention to
Harper as she spoke and were treating her directives casually
by talking among themselves, not really paying attention to
what she had to say. His recollection regarding what Mireles
said is not strong in detail but Mireles said, “Shut the hell up or
something like that. I cannot remember.”
All seem to agree that at least some level of profanity was
used. There is also general agreement that whatever supervisor
was speaking he or she was focusing on a procedure change
and that the staff was not giving it the proper attention. Mireles,
of course, was by then aware that Respondent was considering
disciplining him concerning, among other things, the manner in
which he had left the unit on February 13. He knew he was
being accused of failing to properly log out of the unit. He also
knew that others commonly followed the procedure he had used
and that Respondent was asserting that the logbooks needed to
reflect such comings and goings. He could see that the supervi-
sors were making a change and that the staff needed to under-
stand it. If they did not, he could foresee others finding them-
selves subject to the same sort of discipline for which he was
being scrutinized.
Mireles readily acknowledges interrupting Harper. He
wanted to emphasize her point, but could see that the group
was not paying proper attention to it. Using an imperative tone,
he quieted them with a profanity and told them that failing to
follow her instructions could result in their becoming subject to
the same sort of discipline he was undergoing.
It should be observed here that Mireles, Carroll, and Neri all
testified that profanity was not uncommon in the facility, nor
was it unknown during the morning briefings, even uttered by
supervision. Respondent does have a policy against the use of
profanity and has enforced it in the past, usually by a written
warning. The policy is also applied toward the inmates’ use of
such language. Generally speaking, the policy (though not al-
ways its enforcement) seems to be aimed at abusive profanity,
rather than casual vulgarity. Even so, Respondent seeks to
minimize its use, if for nothing else, to maintain a professional
atmosphere.
Nevertheless, it appears that Mireles’ demeanor, strong lan-
guage or the news of his being investigated did attract the atten-
tion of everyone in the room. Indeed, after a pause, the meeting
ended and the employees left for their duty posts.
Shortly after the meeting was over, Harper mentioned Mire-
les’ comments to Shift Supervisor Jerome Williams. Williams
suggested that she speak to Mireles privately and admonish
him. She did so and during their meeting Mireles acknowl-
edged that he had been in error to have used the language. In
the meantime Williams mentioned the matter to Security Chief
Semler. For reasons that are not testimonially clear, Semler
decided to pursue the matter further. He was, of course, in the
process of finishing his investigation report concerning the
events of February 13. He promptly asked a number of supervi-
sors to fill out 5–1C’s concerning what had happened in the
briefing. As result, he learned what Mireles had done. He also
learned that Harper had already admonished Mireles. Despite
his receipt of the 5–1C’s Semler actually interviewed no one,
including Mireles. Thus, the conclusions he reached are based
simply on the material contained in the 5–1C’s and not on any
independently derived information.
According to Mireles, a day or so later, he was working as
the unit control officer in unit B when Supervisor Small came
to him holding a 5–1C form and asked him to complete it, de-
scribing what had happened at the meeting. Mireles, then busy
with his unit control duties—answering phones, controlling the
doors, monitoring the pods and recording log entries—begged
off for the moment, saying he would write it later. Small then
asked Mireles if he was refusing to write the 5–1C Mireles
answered that he was not refusing, but would fill it out later.
Small left, taking the form with him. Small did not repeat his
request later and Mireles did not fill out 5–1C.
Small denies that he ever asked Mireles to fill out a 5–1C.
Indeed, Respondent offered the testimony of Shift Supervisor
Williams. Williams testified that after he had heard of the mat-
ter from Harper (that Mireles “was cursing in briefing, being
unprofessional”), he called Mireles at his unit control post. He
testified: “I told Mr. Mireles, ‘I need a 5–1C from you for the
incident that occurred in the briefing room.’ He said, ‘I am not
providing a 5–1C because [they are out to get me] anyway.’ I
CORRECTIONS CORP. OF AMERICA 649
said, ‘That is fine. I can’t make you write one.”’ 20 Williams
asserts that Mireles, by his response, refused to fill out a 5–1C.
On February 23, Williams filled out his own 5–1C regarding
Mireles’s supposed refusal. He wrote: “On 2–23–04 at ap-
proximately 0920 I gave a direct order to Officer Cruz Mireles
to write a 5–1C statement about the incident that occurred on
February 21, 2004 at approximately 0700. Officer Mireles re-
fused to write a statement.”
Mireles denied that such a conversation with Williams ever
occurred. He testified:
Q. [BY MS. CAHN] Okay. Now on February 21st, 2004,
that was at the briefing, afterwards were you asked by a
Jerome Williams to write a 5–1C?
A. [WITNESS MIRELES] No, ma’am.
Q. Do you recall receiving any telephone call from Mr.
Williams—
A. No, ma’am.
Q. — asking you to fill out a 5–1C?
A. No, ma’am.
Q. Did you ever tell Mr. Williams that you’re not go-
ing to write a 5–1C because they were out to get you, any-
way?
A. No, ma’am.
Mireles testified that the only person who asked him to fill
out a 5–1C concerning the briefing room incident was Small, as
described above. Small, as noted, denied that he had ever asked
Mireles to do so.
This appears to raise a credibility resolution regarding what
actually occurred with respect to the 5–1C request. It seems
significant principally because when Respondent discharged
Mireles on February 24, it cited the profanity, the supposed
refusal and the February 13 events. Even so, as will be seen, it
is not necessary to resolve the credibility conflict concerning
Mireles’ supposed refusal to fill out the 5–1C.
In the so-called problem solving notice (the internal form
which Respondent uses when it resolves an employment-related
incident) Semler wrote, addressing Mireles: “On February 21,
2004, during the shift briefing you used obscene language and
displayed unprofessional conduct. Later when your supervisor
requested a written statement, you refused to provide the state-
ment.” In the recommendation line, Semler recommended
“termination.”
Thus, in his two recommendations written February 23,
Semler recommended to Warden Wagner that she discharge
Mireles.
Wagner testified that in making her decision to discharge
Mireles she relied on three principal factors. The first was Sem-
ler’s recommendation for discharge for the “post abandonment”
material, including Mireles’ supposed lying. The second was
Semler’s problem solving notice concerning the briefing room
incident and the supposed refusal to fill out the 5–1C form.
Finally, the third was a general review of Mireles’ employment
history that included two earlier and lesser forms of discipline.
One of those was ancient history.

20 The material in brackets is a correction of a transcript error.
The earlier punishment was a 5-day suspension without pay
in September 2001. That incident involved an accusation that
Mireles had sexually harassed a female employee at a company
picnic. It appears that Mireles had become involved in a horse-
play water fight in which he had thrown a water balloon at the
female employee and hit her in the chest area. A supervisor had
recommended that he be discharged, but Warden Wagner re-
duced it to the suspension. At the time of his discharge the
incident was 2-1/2 years old.
The second discipline was a 2-day suspension without pay
in April 2003 for an incident during which Mireles and another
employee verbally argued with one another concerning some
work duties and that Mireles used profanity. It appears that
both involved officers behaved inappropriately. The supervisor
recommended a 3-day suspension, but Warden Wagner reduced
it to 2 days. At the time of his discharge the second incident
was 10 months old.
It is undisputed that Respondent has no written personnel
policies concerning discipline. It does not follow any sort of
progressive disciplinary system. The handling of the two earlier
disciplinary incidents demonstrates a certain built-in arbitrari-
ness. The first, although initially characterized as sexual har-
assment, clearly was nothing of the sort. Indeed, it is the type of
horseplay that might be found at any company’s summer pic-
nic. The supervisor nonetheless recommended discharge; the
warden recognized that the recommendation did not fit the
misbehavior, if any, and wasn’t worthy of discharge. The entire
incident might well be characterized as boisterousness. Never-
theless, it resulted in a 3-day suspension. The second, more
serious in my view, was a loud, angry, unprofessional argument
between two correctional officers concerning their duties. Not
only was it unprofessional, it involved ad hominem accusations
and some profanity, though uttered in apparent disbelief (that’s
bullshit!). This was disruptive of the operation, particularly
since it took place in the dispensary. Yet the incident drew only
a 2-day suspension.
These may be contrasted with the written reprimand given
Officer Alvarez in June 2001 for a verbal altercation with an-
other officer, in which he used two profane words “mother f—
ker” and “bitch” and the written reprimand given Correctional
Officer Moore in June 2001 in which he engaged in a verbal
argument with another officer using profanity (“[I’m] not doing
your f—king job for you . . . I’m sick of your sh—”). In addi-
tion, there was a 1-day suspension of correctional officer Leach
in February 2003 in which the officer ‘engaged in a loud and
unprofessional exchange with another officer in the presence of
inmates and contract staff.’).
As can be seen, there is little consistency about the manner
in which Respondent approaches its discipline insofar as it
relates to either profane language or verbal altercations between
staff members. In fact, is not even clear that Respondent con-
siders whether the language is ad hominem or simply an angry
utterance. Surely profane insults and name calling are of more
concern to the goals of professionalism and a contented work-
force than the occasional undirected oath of frustration. Yet,
that does not seem to be the case with this employer.
Similarly, the post abandonment disciplines are inconsistent
as well. In October 2002, Correctional Officer Lockhart was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
discharged because he abandoned his pod “on numerous occa-
sions and made several outside phone calls. . .” In October
2003, Correctional Officer Duarte was discharged because he
“abandoned his post without being properly relieved.” In No-
vember 2003, Correctional Officer Espinoza was given a 1-day
suspension because she “abandoned her post in intake by refus-
ing to continue working and by leaving the area.”
In any event, Warden Wagner says on February 24 she con-
sidered the two reports and Mireles’ disciplinary history before
making her determination. She also added that she considered
the fact that Mireles had supposedly not been properly relieved
on February 13, when he left to go to the administration offices.
She clearly concluded that Mireles had lied when he suppos-
edly told her that he had been requested to come to administra-
tion by Semler (whether by name or by radio code). Further-
more, she accepted Semler’s finding that Mireles had used
obscene language during the briefing and that he had refused to
fill out a 5–1C when Williams directed him to do so.
About noon on February 24, Mireles was summoned to the
warden’s office. Present were Warden Wagner and Assistant
Warden Howard. They told him that he was being terminated
for abandoning his post, making a false statement and using
obscene language during the morning briefing. They asked him
to sign copies of problem solving notices having those conclu-
sions. He declined. It seems clear from the testimony that War-
den Wagner did not go into any great detail concerning his
supposed transgressions nor did she mention any previous dis-
cipline.21 Mireles then left.
IV. ANALYSIS AND CONCLUSIONS
The first issue to be decided is whether or not Respondent,
through Warden Wagner, unlawfully stimulated or sparked
employee interest in either disavowing the Union or filing a
decertification petition. The law does permit an employer to
engage in the ministerial act of providing either addresses and
telephone numbers of local NLRB offices to employees who
ask about the mechanics of decertifying a bargaining represen-
tative [R. L. White Co., 262 NLRB 575, 576 (1982)] or limited
clerical assistance [Mobile Home Estates, Inc., 259 NLRB
1384, 1395 (1982)]. It does not permit the employer to initiate,
urge, or involve itself in the process. An employer may not

21 Also not mentioned was certain material concerning Mireles’ two
applications for employment in September and October 1999. At the
hearing, Respondent sought consideration of certain supposed false-
hoods, which if known at the time, would have disqualified him from
employment. Warden Wagner claimed that she had, during the prepara-
tion for the case, learned that some of the answers Mireles had given in
the forms were false. I barred testimony on the issue after learning that
the material was not newly discovered, that it had been considered by
Wagner’s predecessor Warden Reavis, his Investigator Chacone, and
by the U.S. Immigration and Naturalization Service investigator. They
had determined the material to be accurate in the circumstances. Those
issues were thoroughly vetted and Respondent hired Mireles with full
knowledge of them, all of which Wagner now says were disqualifiers.
Wagner may have been unaware of the answers and their explanations,
but the material was far from being newly discovered. Mireles’ answers
had been scrutinized by the background investigation authorities and
had passed muster.
provide assistance beyond the absolute minimum. However,
employers are permitted to provide information about the law
in answering such questions so long as their communications
are free of threatened coercion or promises a benefit. The
Board has long considered an employer’s undue involvement in
sparking employee interest in decertifying the incumbent union
or otherwise hamstringing it from within (urging resignations,
dues-checkoff cancellations and the like) to be an unlawful
interference with the employees’ Section 7 rights. See generally
Texaco, Inc., 264 NLRB 1132 (1982), enfd. 722 F.2d 1226 (5th
Cir. 1984), where the Board said, at 1133:
Considering the course of events described above and the
entire record herein, we agree with the Administrative
Law Judge that “Respondent did not maintain a neutral
position here, and it obviously went further than simply
answering inquiries of employees.” After learning from
Sutton of employee dissatisfaction, Respondent initiated
and stimulated the activity that led to the employees’
withdrawal from the Union and the termination of the con-
tract. Respondent proposed the idea of both the employee
petition and the memorandum of agreement to terminate
the contract, and also drafted and typed them. In addition,
Respondent allowed employees to solicit and sign the peti-
tion during working time and provided supervisory assis-
tance in making the petition available to potential signers.
Clearly, Respondent did far more than merely allow em-
ployees to exercise the rights guaranteed them in Section
7 of the Act. Respondent actively and effectively partici-
pated in the process of furthering employee withdrawal
from the Union.
Accordingly, we adopt the Administrative Law Judge’s
finding that Respondent unlawfully aided in the circula-
tion of the petition and encouraged employees to sign.
_____________
14 See Shenango Steel Buildings, Inc., 231 NLRB 586, 588–
589 (1977); Dayton Blueprint Co., Inc., 193 NLRB 1100, 1107-
08 (1971).
Similarly, in Placke Toyota, 215 NLRB 395 (1974), the Board
said:
Although an employer does not violate the Act by refer-
ring an employee to the Board in response to a request for
advice relative to removing a union as the bargaining rep-
resentative,6 it is unlawful for him subsequently to involve
himself in furthering employee efforts directed toward that
very end. Thus, an employer’s solicitation, support, or as-
sistance in the initiation, signing, or filing of an employee
decertification petition interferes with the employees’ Sec-
tion 7 rights.
_____________
6 KONO-TV-Mission Telecasting Corp., 163 NLRB 1005,
1006 (1967).
7 Dayton Blueprint Co., Inc., 193 NLRB 1100, 1107–08
(1971); Inter-Mountain Dairymen, Inc., 157 NLRB 1590, 1609–
13 (1966).
Here Respondent did not initiate the decertification peti-
tion or “urge” employees to sign it, but it did lend more
CORRECTIONS CORP. OF AMERICA 651
than minimal support and approval to the securing of sig-
natures and the filing of the petition. Thus, if Respondent’s
activity had been limited to answering Whalen’s inquiry
about how to eliminate the Union by directing him to the
Board, we would find no violation. However, Respondent
put its imprimatur upon the petition at the very outset by
permitting it to be circulated as a company document after
being typed on Respondent’s letterhead. And, Respondent
continued to give the petition its open support—or at least
the clear impression of open support—by allowing it to
remain for several days on Supervisor Williams’ desk. Fi-
nally, apparently after all employees had signed the peti-
tion, Williams asked Babb to file it with the Board and in-
dicated he would ask Whalen to do so, thereby assisting in
forwarding the completed petition to the Board. [Footnote
omitted.]
In view of the foregoing, we find that Respondent’s con-
duct in connection with the decertification petition inter-
fered with and coerced the employees in the free exercise
of their rights guaranteed in Section 7, thereby violating
Section 8(a)(1) of the Act. [Footnote omitted] [Emphasis
added].
Other cases in the same genre include Hall Industries, 293
NLRB 785, 791 (1989) (Since the Respondent actively stimu-
lated the decertification effort and did so in the context of seri-
ous unfair labor practices, its conduct in this regard is also a
violation of Section 8(a)(1) of the Act and the decertification
petition which resulted from its effort is void ab initio.); Archi-
tectural Woodwork Corp., 280 NLRB 930 (1986) (“Respondent
violated Section 8(a)(1) by encouraging and soliciting employ-
ees to decertify the Union. In this regard we particularly note
that the Respondent’s 26 October entreaty to employees, in the
wake of the Board’s dismissal of the Respondent’s RM peti-
tion, that it was up to them to file a decertification petition,
followed closely on the heels of the Respondent’s 22 October
remarks that, inter alia, it was losing millions of dollars in con-
tracts to outside shops who were nonunion, that it would not
bargain with the Union, and its implication that some employ-
ees’ wages would be reduced.”); Erickson’s Sentry of Bend,
273 NLRB 63, 64 (1984) (“Not only did Schmidt assist Rich-
ards, but he and Sears also gave the appearance that Erickson’s
favored the petition and encouraged employees to sign it and
created a situation where employees would tend to feel peril in
refraining from signing the petition. In addition, Sears made it
clear by his statement to Jackson that Erickson’s was monitor-
ing who had or had not signed the petition. Accordingly, we
find that Erickson’s unlawfully encouraged and solicited em-
ployees to sign a petition to withdraw from the Union, thereby
impairing employee freedom of choice in violation of Section
8(a)(1) of the Act.”) (footnotes omitted); and Seneca Foods,
244 NLRB 558 (1979) (Section 8(a)(1) violation where em-
ployer suggested the circulation of an antiunion petition; fos-
tered, encouraged and/or participated in same.).
Insofar as Respondent is concerned, there is no doubt that
Warden Wagner initiated and stimulated the concept of filing a
decertification petition and connected it to her polemic that the
Union would deny the bargaining unit members the right to
vote on bargaining and strike issues. So far as this record
shows, absolutely none of her evidence concerning supposed
employee unhappiness with the Union was true. Her claim
concerning de la Fuente was false and her reference to other
supposedly disaffected employees must be considered false as
well. In fact, so far as this record is shows, those employees
must be deemed nonexistent. It is clear that Respondent has
offered no proof whatsoever that any employee ever asked
Wagner how to get rid of the Union. The notices she posted,
including directions to a decertification website, and the so-
called “need” for employees to act quickly given the Union’s
perceived unfair procedures (which she contrasted with “proof”
that the employees did not need a Union as evidenced by the
Department of Labor’s wage determination) all lead to the con-
clusion that she was engaging in nothing more than a corporate
dance designed to oust the Union. That dance included a num-
ber of falsehoods about internal union procedures. This was not
a response to any employee-generated concern. It was, instead,
an underhanded, stealthy effort to get rid of the Union. Fur-
thermore, she inferred she could monitor the employees and
would know did and who did not support a decertification
drive. Both the initiation of the concept and the how-to map she
provided violate Section 8(a)(1).
In addition, that conduct, as an unfair labor practice, clearly
qualifies as union animus and colors all of what followed, in-
cluding the manner in which Respondent treated Carroll and
the manner in which it handled the events leading to Mireles’s
discharge. It demonstrates that the Company and Wagner are
entirely capable of using crafty and devious methods when
dealing with union-related issues.
When Carroll returned to duty in January from his surgery
there was no reason whatsoever to return him to the “cards,”22
except for a possible short-term schedule adjustment. Instead of
simply returning him to his courtroom duties, it returned him to
a less desirable situation than he had held before. The court-
room assignment was a stable Monday through Friday sched-
ule. Working in the units involved a 6-day sliding, and there-
fore less regular, schedule. Standing alone, given the fact that
Respondent has the right to assign correctional officers to all
kinds of duties within that general occupation, a certain amount
of arbitrary assignments would not be remarkable. However, it
does not stand alone. Wagner and Semler were well aware of
the schedule differences and the concomitant lack of desirabil-
ity of being on the cards. Furthermore, they were being driven
by a certain amount of union animus. When one observes that
Semler’s explanation for not returning Carroll to the courtroom
is unsupported, it raises the question of whether his decision
was honestly based or whether it was influenced by Carroll’s
status as a union organizer and acting union vice president.
It is a commonplace in analyzing personnel decisions under
the Act to observe that a demonstrably false or pretextuous
reason for a negative personnel decision permits the trier-of-
fact to conclude that the real reason is an unlawful reason.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.

22 Respondent and its employees refer to the sliding schedules as
“cards” because they have to be posted to be understood. An example
in evidence is GC Exh. 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
1966). Furthermore, if the negative treatment visited upon an
employee includes union animus as a motivating factor, a prima
facie case of discrimination has been established. Naomi Knit-
ting Plant, 328 NLRB 1279, 1281 (1999). Thus it is so here.
Semler claimed that he did not place Carroll back in the court-
room because he intended to train other employees to perform
that duty, yet he never did train anyone else.23 What, then, was
Semler’s actual purpose? On this record, it seems reasonable to
conclude that it was somehow to let Carroll know that his union
status did not prevent Respondent from treating him arbitrarily
if it so chose—a kind of chastening. It was basically a demon-
stration of power, a lesson it believed Carroll would under-
stand. Finally, when Semler determined that there really were
no better candidates for the courtroom job, he relented and
returned Carroll to the courts shortly before this hearing began.
Respondent’s treatment of Carroll, denying him the right to
return to his job as a courtroom officer, was because he was a
union official and because Respondent wanted to remind him
that as a union official he was not free from Respondent’s
power to treat him arbitrarily. It violated Section 8(a)(1).24
Respondent’s treatment of Mireles, while factually more
complicated, falls into the same category. His circumstance is a
little more broad. Not only was he a union official and activist,
he also served as a Weingarten representative. That duty clearly
falls within the category of an individual whose duty is to en-
gage in the Section 7 authorized responsibility of “mutual aid
and protection.”25 Rather clearly, any employee who serves as a
Weingarten representative is serving in a capacity which by
definition is for the mutual aid and protection of the individual
undergoing the investigation.
As for the facts, there can be no debate that Castillo called
for Mireles’s presence knowing his function as a Weingarten
representative. Furthermore, there can be no real debate about
the fact that Mireles believed in good faith that a management
representative was behind his being summoned for Weingarten
purposes. When he received the call from Central Control Offi-
cer Vaught, Mireles had every right to believe that Vaught was
acting pursuant to a routine which had been followed in earlier
Weingarten happenstances. Objectively speaking, there was
simply nothing irregular about the request for his presence.
Furthermore, Mireles’s departure from his pod occurred
upon Unit Control Officer Donahue’s return to his post. I find it
significant that Respondent did not call Donahue as a witness
and I draw the adverse inference that if he had been called, he

23 Moreover, Respondent did not train anyone for courtroom work
during Carroll’s medical leave. His absence provided the perfect occa-
sion to train another, but Respondent did not take the opportunity.
24 I do not find an 8(a)(3) violation here as Respondent’s treatment
of Carroll does not implicate that Section ’s “hire and tenure” language.
25 Sec. 7 of the Act states: “Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8(a)(3).” (Emphasis added for pertinency.)
would have given testimony inconsistent with that argued by
Respondent and consistent with the testimony given by Mire-
les. In any event, Mireles could not have left the B unit without
Donahue’s knowledge. Furthermore, Neri’s testimony that
Donahue told him Mireles had gone “downstairs” is fully con-
sistent with Mireles’s version. Perhaps the better practice
would have been for Mireles to have logged out, but he was
simply following a practice which was routine and wellknown
to supervision. His answering the call and departing the unit for
Administration in the manner he did never involved misbehav-
ior of any kind. Indeed, after the fact, Respondent’s principal
corrective action for the remaining employees was to tighten
the logging requirements, nothing more.
Later, after Mireles’s fruitless effort to join the meeting in
the warden’s office, Wagner concluded, without any rationale
that makes sense, that Mireles had claimed Semler had called
for him and that his claim was a lie. We have already seen
Warden Wagner’s dissemblance with respect to fostering the
decertification movement. Now we see an even less subtle
form. Clearly Mireles had no reason to lie about why he was
there or who had called him. He had acted in a routine way and
expected that management already knew what he was doing.
When she first faced the situation, Wagner’s first instinct
should have been to find out why Mireles was there. Indeed,
she even had a compelling clue: Castillo had asked for a union
representative. When she found the union/Weingarten represen-
tative outside the door, some sort of illumination should have
occurred. Therefore, the natural question would have been
‘why are you here?’ Instead, she says she went through some
sort of thought process which led her to assert that she per-
ceived misconduct by Mireles. A misunderstanding had clearly
occurred but Wagner, rather than clearing it up, decided to take
advantage of it.
Still on her campaign to oust the Union, Wagner now had
the acting union president in her sights. He had appeared, as
she had just found out, without having been summoned by any
manager. That was enough for her to start the ball rolling
against him. She did that by directing Semler, rather than In-
vestigator Pitula, to investigate the circumstances. To assure
that the investigation resulted in discipline, she told Semler to
find out why Mireles had lied about who had called him. Mire-
les, it will be recalled, testified he had repeatedly told them that
he had been called by central control. That was the truth, but
she knew if she told Semler to find out why Mireles had lied,
Semler would never question her declaration that Mireles had
lied. Indeed, he could be led to adopt it and corroborate her.
After Mireles left the administration area, Respondent got
lucky. Mireles ran into Supervisor Small who directed him to
work in unit J. This allowed Semler to exaggerate some of the
circumstances in his report. Later even Wagner had to give
Mireles credit for the time spent at unit J. Nevertheless, both
continued to exaggerate the situation, for had Small not di-
verted Mireles, he would have returned to B unit after an ab-
sence of only about 40 minutes. Instead, they continue to char-
acterize his absence as “over an hour.” The documentation
simply does not support that conclusion. Still, the incident
caused Respondent to review the logs at unit B, finding out
(though most already knew it) that correctional officers often
CORRECTIONS CORP. OF AMERICA 653
left the unit for varying periods of time without logging out.
Respondent does not see, or will not acknowledge, that its post
rules on the point are sufficiently contradictory to have contrib-
uted to the employees’ practice; first-line supervision seems to
have operated under the same misapprehensions.
However, the personnel aspect of this matter was simply
part of the overall effort to get rid of the Union. If during that
endeavor Wagner could also find a means to discredit the Un-
ion’s ability to assist employees in times of employment diffi-
culties, such as erasing any hope of Weingarten representation,
so much the better. The incident permitted Respondent to kill
two birds with one stone: first, it demonstrated to the staff that
Weingarten representatives were of no assistance, thereby un-
dermining the need for the Union; second, it could discharge
under a cloud of claimed prevarication, the individual who tried
to carry out that duty, and thereby rid itself of the principal
union leader.
The Respondent’s luck continued. About a week later, Mire-
les, now feeling the heat of an unfair investigation and not
wanting any of his fellows to suffer the same fate, used some
sort of profanity to force them to listen to supervision as
Harper/Small explained how the logging rules were being
tightened. At the same time, Mireles informed the assembly
that he was being investigated for that same issue. It was at that
point that the room became quiet. Despite the fact that Mireles
had supported the supervisors in the delivery of the new direc-
tives, Respondent later held that support against him.
Although Respondent does have a rule against profanity, it
is a rule which is often ignored, even in the briefing room. The
evidence shows that not only did correctional officers use bad
language there, so did some of the supervisors. Furthermore,
the penalties for profanity are arbitrary and inconsistent. They
frequently do not fit the crime. Mireles’s profanity was only
aimed at getting employees to pay attention. It was not a firing
offense. Both Williams and Harper knew it. Why did Semler
inflate the situation as he did?
Given the way the matter developed, I am not convinced
that Mireles’s vulgarity during the briefing was really the issue.
I observe that during his commentary he revealed that he was
undergoing an investigation because he had not been following
the logging rules as Respondent was now interpreting them.
That news was of far more interest to the staff than any com-
mon vulgarity. Indeed, it can be seen as a union official’s warn-
ing to other employees of a hazard they were all risking. Quite
literally, it was an act of mutual aid and protection as defined
by Section 7. Cf. Whittaker Corp., 289 NLRB 933 (1988). The
fact Mireles’s advice was accompanied by a mild profanity, or
even a stronger one, aimed at getting his fellows’ attention does
not cancel its protected nature. Indeed, his leadership also had
the added benefit of assisting the supervisors in delivering their
message concerning the change in the logging procedures. This
was a message both management and the Union wanted to im-
part. Two things are certain: Mireles was not insulting anyone
and Mireles was exhibiting his leadership in a positive, if some-
what indelicate, in manner. As we have already seen, Respon-
dent does not countenance employee leaders very well. In my
view, once Semler learned that Mireles was continuing to flex
his leadership muscles, that was another mark against him. The
profanity and the supposed refusal to fill out a 5–1C are simply
makeweight in the circumstances. Indeed, the entire briefing
room incident was nothing more than Semler’s attempt to bol-
ster what he knew was Wagner’s predetermined decision to fire
Mireles. It was really nothing more than Semler adding an af-
ter-the-fact patch to justify Wagner’s decision, a decision she
had already revealed in a veiled way on February 13. After that
it was just a matter of allowing Semler to build a paper trail.
That Semler was building such a trail is manifest. His inves-
tigation of the post abandonment/lying particulars is fraught
with exaggerations, omissions, time-line misanalyses, one clear
distortion (about the phone call) and padded with at least one
employee’s induced postscript (Vaught) and possibly another’s
(Donahue). Moreover, the manner in which he collected the 5–
1C forms appears designed not to find the facts. Its shortcom-
ings have already been discussed. The way in which the forms
were used here was nothing more than a way of playing “Got-
cha.” He also unnecessarily enlarged the report with the state-
ments of supervisors who were not even involved and who
Semler knew he could exclude from the moment he spoke to
Mireles and Vaught. Mireles never claimed a supervisor had
authorized him to leave unit B and Vaught told him from the
outset that he had called Mireles because Castillo had asked
him to. What purpose did all the supervisor statements serve?
All they did was expand the file. In my view Semler did this in
order to be able to characterize the investigation as objective
and thorough when it was nothing of the sort. Its outcome had
been preordained as soon as Wagner told him Mireles had lied
about who had told him to come to the office.
The foul language investigation a week later, compounded
with the claim that Mireles had refused a direct order to fill out
a 5–1C, is more of the same. Realizing that his investigation
report was not as strong as he would like, Semler seized on a
discourse that was slightly out of the ordinary, one which had
already been addressed appropriately by Harper. Again, Sem-
ler, pleasing Wagner in accomplishing her aim, added some
insurance to the decision. To the extent that one needs to re-
solve the differences between Mireles and Small/Williams
regarding refusing to fill out the 5–1C relating to the briefing,
the probabilities favor Mireles. Having a supervisor approach
him at work, asking him to drop what he was doing and fill out
the form, seems to describe a memorable incident. Williams’s
testimony about a phone call and Small’s denial don’t carry the
same imprint of memory. If necessary, I would find in Mire-
les’s favor; but it is not. The decision to discharge him for dis-
criminatory reasons had been made long before the briefing
room matter. Even there, one can see that the charge of insub-
ordination was added to the weaker claim of violating the bad
language rule. All in all, Semler’s approach to creating the
paperwork to justify firing Mireles is a transparent miscon-
struction of events, all designed to justify a discriminatory de-
cision.
As noted above, both the post abandonment and the briefing
room incidents were merged for the purpose of discharging
Mireles on February 24. In both instances Mireles was exercis-
ing rights guaranteed him by Section 7 of the Act. Each of
those activities involved relatively straightforward instances of
his acting for the mutual aid and protection of other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
Standing by itself each of these incidents was protected. In the
first, he was the union official serving as a Weingarten repre-
sentative and in the second he was the acting union president
warning the assembled employees he represented of a risk they
had all been running. For serving in those two capacities Re-
spondent discharged him. Such a discharge independently vio-
lates Section 8(a)(1) and also constitutes a violation of Section
8(a)(3) and (1).
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. More specifically, because
Respondent discriminatorily assigned Edward Carroll to less
desirable terms of employment due to his status as a union offi-
cial, Respondent will be ordered to cease such discriminatory
conduct. In addition, as Respondent discharged Cruz Mireles
both because of his service as a Weingarten representative and
because he engaged in other protected concerted activity, both
integral parts of his duties as a union official, Respondent will
be ordered to offer him immediate reinstatement and make him
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of his discharge to the date of a
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). Furthermore, it shall be required to ex-
punge from Mireles’s personnel file any reference to his illegal
discharge, including the investigation report and the problem
solving notice used to justify it. Sterling Sugars, 261 NLRB
472 (1982). Finally, Respondent shall be directed to post a
notice to employees advising them of their rights and describ-
ing the steps it will take to remedy the unfair labor practices
which have been found.
Based upon the foregoing findings of fact, legal analysis, and
the record as a whole I hereby make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in an industry affect-
ing commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Beginning on October 8, 2003, Respondent acting
through Warden Barbara Wagner embarked upon a campaign
to encourage, foster, and instigate an employee movement to
decertify or otherwise oust the union as the employees’ collec-
tive-bargaining representative and in doing so violated Section
8(a)(1) of the Act.
4. Respondent violated Section 8(a)(1) of the Act in January
2004 when it discriminated against its employee Edward Car-
roll because of his status as a union official by assigning him to
less desirable employment.
5. On February 24, 2004, Respondent violated both Section
8(a)(1) and Section 8(a)(3) of the Act when it discharged its
employee Cruz Mireles because of his union activities and be-
cause of his protected concerted activities.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, Corrections Corporation of America, San
Ysidro, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully initiating, encouraging, soliciting, or coercing
employees in order to impel them to take steps to end their
representation by International Union, Security, Police and Fire
Professionals of North America (SPFPA), whether by decertifi-
cation or by other means.
(b) Changing the work assignments of employees because of
their status as a union official or because they have engaged in
activity protected by the Act.
(c) Discharging or otherwise disciplining employees because
they engage in activity protected by Section 7 of the Act, in-
cluding serving as a union official or serving as an employee
representative assisting fellow employees who are being inves-
tigated for misconduct.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Cruz
Mireles full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Cruz Mireles whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to Mireles’s unlawful discharge together
with the connected documentation, and within 3 days thereafter
notify him in writing that this has been done and that the dis-
charge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its
prison in San Ysidro, California, copies of the attached notice
marked “Appendix.”27 Copies of the notice, on forms provided

26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
27 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 Judg-
CORRECTIONS CORP. OF AMERICA 655
by the Regional Director for Region 21 after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by 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, Respon-
dent has gone out of business or closed the facility involved in
these proceedings, 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 October 6, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT initiate, encourage, solicit, or coerce you to get
you to take steps to end your representation by International
Union, Security, Police and Fire Professionals of North Amer-
ica (SPFPA), whether by decertification or other means.
WE WILL NOT change your work assignments because of your
activities on behalf of International Union, Security, Police and
Fire Professionals of North America (SPFPA), because of your
status as an official of that union or because you engage in
other activity protected by Federal labor law.
WE WILL NOT discharge or otherwise discipline you because
you engage in activity protected by Federal law, including serv-
ing as a union official. If we investigate you for employee
misconduct, you have the right to the assistance of a union
representative during our investigation and WE WILL NOT dis-
charge or discipline your union representative because he or
she seeks to represent you during the course of that investiga-
tion.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL, within 14 days from the date of the Board’s Order,
offer Cruz Mireles full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Cruz Mireles whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charge of Cruz Mireles, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the dis-
charge will not be used against him in any way.
CORRECTIONS CORP. OF AMERICA