Federal Security Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1995

318 N.L.R.B. 413 (N.L.R.B. 1995)

413
318 NLRB No. 46
FEDERAL SECURITY, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully reviewed the record and
find no basis for reversing the findings.
2 Contrary to his colleagues, Member Truesdale would find that in
light of the nature of the security guards’ duties and the nature of
the facilities at which they worked and, in the circumstances of this
case, the inadequacy of the notice given, their walkout was not pro-
tected because it compromised the safety of the residents of the
CHA properties and of the nonstrikers who were left alone at some
locations.
3 Member Stephens finds that exercise of jurisdiction in this setting
is a statutory question and therefore cannot be waived. He agrees
however with his colleagues that the record evidence does not estab-
lish that the CHA exerts sufficient control over the Respondent to
find that the latter is exempt from the Board’s jurisdiction. See his
concurring opinion in Res-Care, Inc., 280 NLRB 670, 675–677
(1986).
4 In this connection, we note and reject the Respondent’s argument
that, because it unsuccessfully requested the CHA to remove Jack-
son, Thomas, Dudley, Green, and Wright from the bar list, backpay
for them should be limited to the period between their offer to return
to work and the Respondent’s removal request. Cf. BPS Guard Serv-
ices v. Plant Guard Workers Local 228, 45 F.3d 205, 208–209 (7th
Cir. 1995) (regarding reinstatement and backpay remedy for guard
fired in violation of collective-bargaining agreement, court affirms
rejection of employer’s ‘‘impossibility defense’’ to a contempt cita-
tion, where employer’s ‘‘grudging’’ request for access to owner of
the guard duty site could ‘‘be read as a virtual invitation to [the site
owner] to deny . . . access’’ to the guard and thereby prevent her
reinstatement).
Federal Security, Inc. and Joseph Palm. Case 13–
CA–31155
August 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On September 14, 1994, Administrative Law Judge
Richard A. Scully issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, to modify the remedy, and to adopt the rec-
ommended Order as modified and set forth in full
below.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by, inter alia, termi-
nating its security guards for participating in a pro-
tected concerted walkout from their posts at multi-
residence public housing sites operated by the Chicago
Housing Authority (CHA),2 and misinforming the
CHA as to the nature of the walkout, with the result
that participants were included on a list of employees
barred from working at the CHA properties.
The Respondent in its exceptions alleges as error the
General Counsel’s failure to join the CHA as an indis-
pensable party-respondent in this proceeding. It argues
that the CHA is indispensable because it is a joint em-
ployer of the Respondent’s security guards and be-
cause, assuming affirmance of the judge’s findings and
recommended Order, the Respondent is powerless to
secure their reinstatement if those guards are on the
CHA’s ‘‘bar list.’’ We find no merit in the Respond-
ent’s contentions, which we view as a belated effort to
question the Board’s exercise of its discretionary juris-
diction over the Respondent under current Board
precedent. We find that because the Respondent failed
to raise the issue of the Board’s discretionary jurisdic-
tion previously it is precluded from doing so at this
juncture. Crispus Attucks Children’s Center, 299
NLRB 815 fn. 3 (1990).3
In any event, we find, in agreement with the General
Counsel’s position in its answering brief, that the evi-
dence with respect to the CHA’s contractual authority,
i.e., in setting minimum wages, establishing hiring cri-
teria, monitoring compliance with the contract, and re-
taining authority to remove security guards from its
property, is insufficient to demonstrate a sufficient de-
gree of control over the Respondent’s employees either
to establish joint employer status or to exempt the Re-
spondent from the Board’s jurisdiction. Old Dominion
Security, 289 NLRB 81 (1988).
We also reject the Respondent’s further contention
that the CHA is indispensable to achieving a full rem-
edy because the Respondent lacks any independent au-
thority, absent the CHA’s agreement, to deploy secu-
rity guards on the bar list to CHA properties. As an
initial matter, we find, in agreement with the judge,
that the Respondent’s erroneous and incomplete report
to the CHA regarding the nature of the walkout and
its participants led the CHA to place their names on
its bar list. Accordingly, the Respondent must bear the
burden of fully remedying, so far as possible, its un-
lawful conduct by attempting to have these names re-
moved from the bar list, in furtherance of its reinstate-
ment obligation. In view of the prospect that this may
prove unsuccessful, and that there might not be a suffi-
cient number of substantially equivalent positions
available, we shall modify the judge’s recommended
remedy and Order by requiring the Respondent to
make whole the named security guards, irrespective of
whether the CHA grants permission for their deploy-
ment on CHA properties.4
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Backpay shall be computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
THE REMEDY
The judge found that the Respondent unlawfully dis-
banded the sweep team and reduced the rank and pay
of the affected guards because some of its members
participated in the subject walkout. He failed, however,
to require reinstatement of the sweep team or direct
that backpay be provided for all guards affected by this
unlawful act. Rather, he recommended only that the
Respondent be required to reinstate the former sweep
team members who had participated in the walkout to
their former rank and rate of pay, or to substantially
equivalent positions if those positions no longer exist.
We shall modify the judge’s recommended Order by
affirmatively ordering the Respondent to reinstate the
sweep team classification which was unlawfully elimi-
nated, and provide a backpay remedy to restore the
status quo ante for all guards affected by this mis-
conduct.5
The judge further found that the striking security
guards were placed on the CHA’s bar list because of
misleading information supplied by the Respondent,
but he recommended only that the Respondent be re-
quired to request the CHA to take immediate action to
remove those names. In order to assure the named se-
curity guards a complete make-whole remedy, we shall
order the Respondent, in addition to requesting the
CHA to remove those names from its bar list, to make
whole the named employees for all lost wages and
benefits from the time of their unconditional offer to
return to work until the Respondent reinstates them to
their former positions or until they obtain substantially
equivalent employment elsewhere. See Sheet Metal
Workers Local 355 (Zinsco Electrical Products), 254
NLRB 773, 774 (1981).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Federal Security, Inc., Chi-
cago, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified below.
1. Cease and desist from
(a) Maintaining any rule or regulation that prohibits
employees from engaging in or supporting a protected
strike, work stoppage, or other concerted refusal to
perform duties.
(b) Threatening employees with termination if they
engage in protected concerted activities.
(c) Coercively interrogating employees about their
protected activities.
(d) Terminating and/or reinstating employees at
lower ranks and wage rates because they have engaged
in a protected strike or walkout.
(e) Eliminating the sweep team classification, rank,
and pay rate because some sweep team members en-
gaged in a protected strike or walkout.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its rule or regulation prohibiting em-
ployees from engaging in or supporting a protected
strike, work stoppage, or other concerted refusal to
perform duties.
(b) Offer to Kelvin Brewer, Elliot Burdan, Tilman
Dudley, Everett Green, Kendell Harris, Harry Hurd,
Samuel Jackson, Zachary Jernigan, Jr., Jerry Johnson,
Natline Jones, Charles O’Neal, Joseph Palm, Charles
Robinson, John Salley, Dwaine Taylor, James Thomas,
Sylvester Wilder, Leslie Williams, and Kenneth Wright
immediate and full reinstatement to their former posi-
tions as members of the sweep team, without prejudice
to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of
earnings or other benefits they may have suffered as
a result of their unlawful discharges, plus interest, until
they are reinstated to their former positions or until
they obtain substantially equivalent positions else-
where.
(c) Restore the sweep team classification, rank, and
rate of pay for all employees formerly employed in
that classification, without prejudice to their seniority
or other rights and privileges previously enjoyed, and
make them whole for any loss of earnings or other
benefits they may have suffered as a result of the un-
lawful elimination of the sweep team classification.
(d) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(e) Notify the Chicago Housing Authority that the
above-named employees were engaged in concerted ac-
tivity protected by Section 7 of the Act when they
walked out on August 11, 1992, furnish it with copies
of this decision, and request that it take immediate ac-
tion to remove the above-named employees from its
bar list, if it has not already done so.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
415FEDERAL SECURITY, INC.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(g) Post at its facilities in Chicago, Illinois, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT maintain any rule or regulation pro-
hibiting our employees from engaging in or supporting
a protected strike, work stoppage, or other concerted
refusal to perform duties.
WE WILL NOT threaten our employees with dis-
charge or being placed on the CHA’s bar list for en-
gaging in concerted activities protected by the Act.
WE WILL NOT coercively interrogate our employees
concerning their protected concerted activities.
WE WILL NOT discharge our employees and/or rein-
state them at a lower rank or wage rate because they
engage in a strike, walkout, or other concerted work
stoppage protected by Section 7 of the Act.
WE WILL NOT eliminate the sweep team classifica-
tion, rank, and pay rate because some sweep team
members engaged in a protected strike or walkout.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our rule or regulation prohibiting
our employees from engaging in or supporting a strike,
work stoppage, or other concerted refusal to perform
duties which is protected by the Act.
WE WILL offer to Kelvin Brewer, Elliot Burdan,
Tilman Dudley, Everett Green, Kendell Harris, Harry
Hurd, Samuel Jackson, Zachary Jernigan Jr., Jerry
Johnson, Natline Jones, Charles O’Neal, Joseph Palm,
Charles Robinson, John Salley, Dwaine Taylor, James
Thomas, Sylvester Wilder, Leslie Williams, and Ken-
neth Wright immediate and full reinstatement to their
former positions as members of the sweep team, with-
out prejudice to their seniority of other rights and
privileges previously enjoyed, and make them whole
for any loss of earnings or other benefits they may
have suffered as a result of their unlawful discharges,
plus interest, until they are reinstated to their former
positions or until they obtain substantially equivalent
positions elsewhere.
WE WILL restore the sweep team classification, rank,
and rate of pay for all employees formerly employed
in that classification, without prejudice to their senior-
ity or other rights and privileges previously enjoyed,
and make them whole for any loss of earnings or other
benefits they may have suffered as a result of the un-
lawful elimination of the sweep team classification.
WE WILL notify each of the above-named employees
that we have removed from our files any reference to
his or her discharge and that the discharge will not be
used against him or her in any way.
FEDERAL SECURITY, INC.
Richard Kelliher Paz, Esq. and Daniel E. Murphy, Esq., for
the General Counsel.
Holly Hirst, Esq. and Ralph H. Morris, Esq., of Chicago, Illi-
nois, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On a
charge filed by Joseph Palm on August 20, 1992, the Re-
gional Director for Region 13 of the National Labor Rela-
tions Board (the Board) issued a complaint on January 27,
1993, alleging that Federal Security, Inc. (the Respondent)
committed certain violations of Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act). The Respondent filed
an answer denying that it had committed any violation of the
Act.
A hearing was held in Chicago, Illinois, on January 18
through 21 and January 31 through February 2, 1994, at
which the parties were given a full opportunity to participate,
to examine and cross-examine witnesses, and to present other
evidence and argument. Briefs submitted on behalf of the
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The unopposed motion of counsel for the General Counsel to
correct errors in the hearing transcript is granted.
2 Hereinafter, all dates are in 1992.
General Counsel and the Respondent have been given due
consideration.1 On the entire record and from my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
with offices in Chicago, Illinois, engaged in the business of
providing security guard services. During the 12-month pe-
riod preceding January 1993, the Respondent, in the conduct
of its business operations, provided services to the Chicago
Housing Authority (CHA) valued in excess of $50,000. CHA
has purchased goods and services valued in excess of
$50,000 from sources located outside the State of Illinois for
use at its facilities in the State of Illinois. The Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent provides security services by means of
armed guards at various multiresidence public housing sites
in Chicago, pursuant to contracts with CHA. James Skryzpek
is the owner and president of the Company and his wife Jan-
ice is a vice president and co-owner. During 1992,2 the Re-
spondent’s security personnel, in descending order of author-
ity, consisted of commanders, chiefs, lieutenants, sergeants.
and officers. All had to have ‘‘blue cards,’’ indicating they
had met the minimum training requirements of the State of
Illinois and ‘‘tan cards,’’ indicating they were employed by
the Respondent and authorized to carry a service weapon.
Their duties on CHA properties included maintaining control
of the building lobbies, checking the identification of persons
entering the buildings, and assuring that guests entered with
the consent of a resident and were logged in. CHA maintains
a guard removal list, commonly referred to as the ‘‘bar list,’’
indicating those individuals who are prohibited from working
as security guards on its property. Should a security firm
such as the Respondent deploy someone who is on the bar
list on CHA property, it could be denied payment for that
person’s services.
For several months prior to August 1992, the Respondent
maintained a ‘‘sweep team,’’ under the supervision of Chief
Carlton Short. At its peak, the sweep team consisted of over
80 employees who were assigned to CHA buildings which
had been the objects of room-by-room sweep searches by the
Chicago police, Federal agents, and CHA security personnel
to remove weapons and illegal drugs and to assure that only
authorized persons were living there. After a building was
swept, the Respondent’s sweep team members were assigned
to a post in the lobby where they were responsible for seeing
that only properly identified tenants or guests were allowed
into the building. Each building was covered 24 hours a day
by two guards working on three shifts and a sweep team
member was not permitted to leave a post until relieved by
a replacement. Members of the sweep team were designated
as sergeants, they received training provided by CHA, and
attended biweekly in-service meetings conducted by Skryz-
pek and various chiefs.
The Respondent has had in force a series of general orders
which were distributed to its employees and constitute its
personnel policies, rules, and regulations. Among those in ef-
fect in August 1992 was general order 92–10, rule 21, issued
June 1, 1992, which provides:
No member will call, institute, authorize, participate in,
sanction, encourage, or ratify any strike, work stoppage,
or other concerted refusal to perform duties by any
member or member group, or concerted interference
with, in whole or part, the full, faithful, and proper per-
formance of the duties of employment with the com-
pany. No member, while on duty, shall refuse to cross
any picket line, by whomever established.
B. The Walkout
On the evening of August 10, approximately 20 to 30
sweep team members met at the Queen of the Sea Res-
taurant, as they often did. Chief Short arrived at the res-
taurant and was asked about various matters of concern to
the employees that had previously been raised at in-service
meetings. Short discussed the assignments of sweep team
members to the Robert Taylor Homes site, showed them a
new sweep team uniform and boots, and told them where
these items could be purchased. During the discussion about
uniforms, Short was asked about bulletproof vests that em-
ployees had been told they would be provided and he re-
sponded that Skryzpek had said the vests were at the Re-
spondent’s northside office. Short was asked about insurance
and said that Skryzpek was putting together an insurance
package for them. Other matters discussed included the fact
that the employees were required to pay for the pagers they
carried so that the Company could reach them at all times,
that all sweep team sergeants were to be paid $6.50 per hour,
a possible reduction in the unlimited overtime available to
sweep team members, and the possibility that they would be
given a $100 bonus instead of the paid vacation employees
wanted. There was also some discussion of the possible ter-
mination of sweep team member Larry Smith who earlier
that day had left his post without being relieved after learn-
ing that his son had been injured. Before leaving the meet-
ing, Short said that he would get in touch with Skryzpek
about the matters that had been discussed.
Short, who was scheduled to begin work at 7 p.m., spent
about an hour at the restaurant and arrived at the Respond-
ent’s office at about 7:45 p.m. After he arrived, it was dis-
covered that no security guard was covering a United Air-
lines’ location and as a result Short was held responsible and
terminated by James Skryzpek. At about 7 a.m. on August
11, as Short was leaving the office with some of his belong-
ings, he met sweep team members Joseph Palm and Karon
Gaspar outside. Palm credibly testified that they asked Short
why he was loading things into his car and he responded that
he had been ‘‘suspended pending termination’’ because the
United Airlines’ post had not been covered, that another
chief had responsibility for scheduling coverage for that loca-
tion, but that he was being held responsible. Palm was not
scheduled to work that morning but had come to the office
417FEDERAL SECURITY, INC.
3 While there appears to be some dispute as to what the term
‘‘1099’’ actually means, it is clear that on the morning of August
11, the Respondent understood that those employees who called in
‘‘1099s’’ were walking off their posts.
to see if any post was unfilled that he might be assigned to
cover. After speaking with Short, Palm and Gaspar drove to
a CHA building at Madden Park where Charles Robinson
and Larry Smith were on duty. When they arrived, they
found that a Sergeant Prince had been sent to replace Smith
and to inform him that he was being terminated for leaving
his post the previous day. Palm informed Robinson that they
had just learned that Short had also been terminated for
something that was not his responsibility.
According to the credible and consistent testimony of
Palm and Short, they discussed what they considered
Skryzpek’s reneging on promises to provide bulletproof
vests, insurance, unlimited overtime, and paid vacations and
the unfair terminations of Smith and Short and decided to de-
mand that Skryzpek meet with them about these matters or
they would walk off the job. At about 8:30 a.m., Robinson
attempted to contact Skryzpek by telephone at both of the
Respondent’s offices. When he was unable to do so, he left
a message with a dispatcher that unless Skryzpek contacted
them by 10 a.m., they would walk out. Robinson began tele-
phoning other sweep team members who were on duty at
CHA buildings to advise them of what he was planning and
enlisting their participation. After speaking with them, Rob-
inson called the Respondent’s office again and asked Lieu-
tenant Lovetta Short, who did scheduling and supervised the
dispatchers, if Skryzpek had been given his message. When
Short said that she was still trying to reach him, Robinson
told that if he did not get a response by 10 a.m. they were
going to walk out. Short said that she did not believe him
and later called back to ask if they were really going to walk
out. Between 9 and 10 a.m., sweep team members Dwaine
Taylor and Kendall Harris came from their building to Rob-
inson’s post to discuss what was going on. Robinson in-
formed them of their plans to walk out if Skryzpek did not
agree to meet and discuss the benefits he had promised and
both said they would join in the walkout. Sergeant Kelvin
Brewer credibly testified that after he arrived at his post that
morning he received a call from Robinson who told him that
he was organizing a walkout if Skryzpek did not agree by
10 a.m. to talk to them about the promises he had made.
Brewer agreed to join the walkout and at 9:30 a.m. he called
the Respondent’s office and spoke to Lovetta Short. He told
Short that they were getting ready to walk out because of
Skryzpek’s failure to keep his promises regarding bulletproof
vests, insurance, and pagers and asked her for the telephone
numbers of other posts so he could let others know about the
walkout, which she gave him.
When Skryzpek had not contacted Robinson by 10 a.m.,
he called in a ‘‘1099’’ on his radio, indicating he was leav-
ing his post.3 Robinson, Palm, Smith, Gaspar, and Sergeants
Denise Pruitt and Raymond Jamison, who had arrived after
being telephoned by Robinson, left the building together,
leaving behind Prince who declined to join them. After other
security officers began calling in ‘‘1099s,’’ Skryzpek came
on the radio, identified himself, and said that anyone that
walked off a post would be suspended pending termination,
their blue and tan cards would be pulled, and they would be
put on a bar list, ‘‘per Lundin,’’ a reference to CHA Director
of Contract Security Brian Lundin. Chief Paul Tackett also
informed several employees who called in to the office that
if they left their posts, ‘‘they would be barred by Contract
Security.’’
After 10 a.m., Palm, Robinson, and a group of sweep team
members left and traveled to other CHA buildings where
they talked to sweep team members about the walkout and
asked them to join them. Robinson testified that he and oth-
ers went to the Respondent’s office and asked to speak with
Skryzpek who refused to see them. The group eventually
went to a park where each put his or her name and pager
number on a sheet of paper as did others who walked off
later and joined the strikers that evening. There are a total
of 27 names on the sheet. While at the park they spoke with
Chief Short who had joined them and decided to prepare a
list of demands and to make signs. They collected the radios
they had with them to be returned to the Respondent’s office
and agreed to meet later at the Queen of the Sea. Palm testi-
fied that they didn’t know how to go about striking and the
purpose of this meeting was to draw up proposals and to set
up picketing. The wife of Kendall Harris was present and she
gave them some advice as to how to go about it. At about
8 a.m. on August 12, they began picketing outside the Re-
spondent’s office, walking around in a circle on the sidewalk
with the signs they had made, until about 5 p.m. They pick-
eted again on August 13 but ceased on August 14 because
it was raining.
Shortly after the walkout began on August 11, James
Skryzpek informed Lovetta Short, who did scheduling, that
the officers who left their posts were to be terminated imme-
diately because they were barred from CHA property. The
Respondent sent letters, dated August 17, 1992, to the em-
ployees involved in the walkout stating that because they had
abandoned their posts on August 11 and had not returned to
work they had been replaced and directing them to turn in
their cards and pagers by August 20. The parties have stipu-
lated that from August 11, 1992, to the date the hearing
began, the Respondent had open and available positions at its
CHA jobsites. The names of the employees who participated
in the walkout were provided to CHA by the Respondent and
most, but not all, were placed on the bar list. Some of the
employees, who submitted requests to the Respondent that
they be reinstated, have had their names removed from the
bar list and have returned to work for it at CHA jobsites.
C. The No-Strike Rule
There is uncontradicted evidence that, effective June 1,
1992, the Respondent maintained a rule or regulation broadly
prohibiting employees from engaging in any strike, work
stoppage, or other concerted refusal to perform duties. I find
that the Respondent violated Section 8(a)(1) of the Act by
maintaining this rule which prohibits all work stoppages in-
cluding those protected by Section 7 of the Act. Sani-Serv,
252 NLRB 1336, 1339 (1980).
D. Threats and Interrogation
As the walkout began on August 11, James Skryzpek
made an announcement on the radio to all employees that
anyone who walked off a post would be suspended pending
termination, their blue and tan cards would be pulled, and
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There is ample evidence in the credible testimony of Palm and
Robinson that they told other sweep team members that one of the
reasons they were walking out was that Skryzpek had reneged on
promises to provide equipment and benefits. I do not consider the
unsworn, hearsay statements contained in the memos in the record
written by certain strikers in order to try to get their jobs back to
be credible or probative accounts of what occurred on August 11.
The Respondent presented testimony of only one of these persons,
Natline Jones, who said she was asked to join the walkout to protest
the termination of Chief Short ‘‘because he went to bat to see about
getting us a raise.’’ After observing Jones while testifying and con-
sidering her testimony as a whole, I find it casts no doubt on the
veracity of Palm or Robinson. Jones, who was reinstated by the Re-
spondent after the strike on the basis of her claim that she was co-
erced into joining it, was openly hostile when questioned by counsel
for the General Counsel and had to be cautioned. She appeared ex-
tremely confused about who was present and what she was told and
did not identify who spoke to her. While she may have initially mis-
understood why the walkout occurred and joined because she
thought it was to protest Short’s termination, her testimony was that
after leaving her post she went with the others to the Queen of the
they would be put on the bar list. Chief Tackett testified that
as the walkout commenced he made announcements to em-
ployees over the radio that if they walked out they would be
barred. Sergeant Michael Davenport credibly testified that
near the end of his shift at a CHA project he received a call
from Robinson who told him there was going to be a walk-
out because Skryzpek had lied about paying them more
money, insurance benefits, and other things. After the end of
his shift, Davenport drove over to the Respondent’s office
where Lovetta Short and Chief Tackett were present. When
he entered at about 8:15 a.m., Tackett asked him if he was
going to join the walkout. Davenport said he didn’t know
and Tackett said that if he left his post he would be auto-
matically terminated.
The threats by Skryzpek and Tackett to terminate anyone
who participated in a walkout, regardless of the reason, clear-
ly interfered with rights protected by Section 7 and tended
to coerce employees seeking to exercise those rights. Bridge-
port Ambulance Service, 302 NLRB 358, 363–364 (1991);
Polynesian Hospitality Tours, 297 NLRB 228 fn. 1 (1989).
After considering the surrounding circumstances, pursuant to
the Board’s decision in Rossmore House, 269 NLRB 1176
(1984), I find Tackett’s asking Davenport if he was going to
join the walkout was coercive and violated Section 8(a)(1).
Tackett’s inquiry had no purpose other than to ascertain
whether he was going to engage in protected activity, inas-
much as Davenport had just finished his shift and there was
no need to cover his post if he joined the walkout. The ques-
tion was accompanied by an unlawful threat that those who
participated in the walkout would be automatically termi-
nated.
E. Whether the Walkout Was Concerted Activity
Protected by the Act
The Respondent contends that the walkout was not con-
certed activity protected by the Act. It argues that the em-
ployees who left their posts on August 11 did so for different
reasons which were unrelated to the terms and conditions of
their employment and were not protected, that they failed to
communicate any demands to the Respondent, and that their
actions in staging the walkout were so improper as to render
them unprotected. I find for the reasons discussed below that
the walkout was both concerted and protected by the terms
of the Act.
1. Concerted activity
Palm and Robinson, who organized the walkout, credibly
testified that the reasons for it were to protest the unrelated
terminations of Chief Short and Sergeant Smith and the fail-
ure of Skryzpek to provide benefits that he had promised to
the sweep team members. While it appears that other sweep
team members who joined the walkout may have felt more
strongly about one or more of these reasons than another,
there need not be unanimity on the merits of every issue nor
a direct benefit to every participant in order for their activity
to be concerted and protected by Section 7 of the Act. See
Cub Branch Mining, 300 NLRB 57, 58 (1990). The standard
for determining whether an employee’s activity is concerted
is found in the Board’s decision in Meyers Industries, 281
NLRB 882 (1986), where, on remand, it reaffirmed the defi-
nition set forth in its prior decision in that case, Meyers In-
dustries, 268 NLRB 493, 497 (1984), that it must ‘‘be en-
gaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.’’ There
can be little doubt but that the walkout and subsequent pick-
eting engaged in by the Respondent’s employees involved
actions that were both with and on the authority of other em-
ployees. Their walkout followed discussions of mutual con-
cerns and involved acting with and in reliance on one an-
other. I find that this group action falls within the Board’s
definition of concerted activity. Trident Recycling Corp., 282
NLRB 1255, 1261 (1987); Daniel Construction Co., 277
NLRB 795 (1985).
2. Protected activity
It appears from its reliance on NLRB v. Marsden, 701 F.2d
238, 242 (2d Cir. 1983), that the Respondent’s real argument
is that its employees’ concerted activities were not protected
under the terms of the Act because they were not in support
of a demand for a change in the Employer’s policies involv-
ing terms and conditions of employment, which was commu-
nicated to it. The evidence does not support that argument.
On the contrary, it establishes that prior to August 10 there
had been several meetings with members of management in
which employees had raised their concerns about such per-
sonnel issues as being provided bulletproof vests, unlimited
overtime, insurance, paid vacations, and other benefits. At
the informal meeting of several off-duty sweep team mem-
bers at the Queen of the Sea Restaurant on August 10,
Sweep Team Commander Chief Short, who was on duty at
the time, discussed the current status of some of these issues,
based on a recent meeting with Company President Skryz-
pek, as well as other personnel matters. Before leaving the
restaurant, Short said that he would be in further touch with
Skryzpek about their concerns. On the morning of August
11, Palm and Robinson discussed the fact that not only had
these issues not been resolved, their principal contact and
means of communication to and from the Employer, Chief
Short, had been terminated, as had Smith. It was this com-
bination of factors which led them to demand a meeting with
Skryzpek and to which they referred in enlisting the support
of the other sweep team members for the walkout when he
failed to respond.4 I find that the evidence establishes that
419FEDERAL SECURITY, INC.
Sea where she obviously learned that it also involved a protest over
Skryzpek’s failure to provide promised benefits, as she was the one
who actually wrote out the employees’ list of demands. She was also
present at the picketing in front of the Respondent’s office the fol-
lowing morning.
5 At the time Short gave her affidavit she was not employed by
the Respondent as she been terminated on September 3, 1992. By
the date of the hearing however, she had been reemployed by it, as
had her husband. In her affidavit, Short stated that Brewer told her
that the sweep sergeants were going to walk out because Skryzpek
had reneged on promises to them and because Chief Short had been
fired. She also stated that she had spoken to Robinson as well as
other sweep team members before the walkout started. In the affida-
vit, she also stated that she was told about the threatened walkout
and the reasons for it by a dispatcher when she arrived at work that
morning but, at the hearing, she denied that she had said that. I have
concluded, based on my observation of Short’s demeanor while testi-
fying and the evidence as a whole, that she was not testifying truth-
fully at the hearing and I do not credit her testimony.
6 Although the evidence establishes that a written list of demands
was drawn up by the strikers at the Queen of the Sea on the evening
of August 11 and Palm testified he gave it to Chief Tackett, the lat-
ter denied receiving it and there is no copy of it in the record. In
a letter Skryzpek sent to CHA, dated August 17, he refers to news-
paper reports, quoting Palm, in which the reasons for the walkout
include ‘‘dissatisfaction with wages, lack of benefits and overtime.’’
7 There is no credible evidence to support the Respondent’s claim
that Palm or anyone else attempted to mislead employees to believe
Short had been terminated while knowing that he had not but was
merely suspended. The evidence is clear that the strikers learned that
Short had been ‘‘suspended pending termination’’ because of a
scheduling foulup that was not his responsibility, from Short himself,
on the morning of August 11. A report prepared by Short concerning
this incident also refers to the fact that Skryzpek told him he was
suspended pending termination. It states that on August 12 he was
relieved of his radio, pager, badges, and credentials by a company
representative. Chief Tackett testified that he received several tele-
phone calls on the morning of August 11 from employees who told
him they were walking out because they had heard Short ‘‘had been
terminated, fired or whatever.’’ He said nothing to contradict what
they had heard.
the employees resorted to the walkout in order to protest the
terminations of Short and Smith and what they considered
Skryzpek’s reneging on promises to provide them with var-
ious benefits. Their action was a protected exercise of Sec-
tion 7 rights. NLRB v. Washington Aluminum Co., 370 U.S.
9 (1962); Trident Recycling Corp., supra at 1261.
The Respondent also contends, based on NLRB v.
Marsden, supra, that the walkout was not protected activity
because the strikers’ demands were not communicated to the
Employer at some relevant time and that their demand for
promised benefits was an after-the-fact attempt to ‘‘boot-
strap’’ a dispute over the termination of a supervisor into a
dispute about terms and conditions of employment, citing,
Abilities & Goodwill, Inc. v. NLRB, 612 F.2d 7 (1st Cir.
1979). The record shows that the employees involved in the
walkout were not particularly sophisticated or articulate, that
they had no bargaining representative, and that they had
learned that the supervisor they relied on to press their de-
mands to Skryzpek had been terminated. As was the case
with the employees who walked out in Washington Alu-
minum Co., supra, ‘‘under these circumstances, they had to
speak for themselves as best they could.’’ Id. at 14. Although
it was not essential that they make a specific demand on the
employer before walking out in order for their action to be
protected under Section 7, they did so. The credible testi-
mony of Robinson and Brewer establishes that, before the
walkout started, Supervisor Lovetta Short was informed by
telephone that if Skryzpek did not agree to meet the walkout
would occur, and that she was told the reasons they would
do so, viz, the termination of Chief Short and Skryzpek’s
failure to provide the equipment and benefits he had prom-
ised. In her testimony, Short claimed that she did not speak
with Robinson that morning and that Brewer only mentioned
the firing of Chief Short as the reason for the threatened
walkout. I do not credit her testimony insofar as she denies
being told that the sweep team members would walk out be-
cause Skryzpek had reneged on promises to them since that
and other statements she made at the hearing are contradicted
by an affidavit she gave the Board in November 1993.5 Rob-
inson’s credible and uncontradicted testimony establishes that
during the picketing outside the Respondent’s office on Au-
gust 12, he spoke with another supervisor, Chief Kevin Jack-
son, asked to speak to Skryzpek, and was told that he did
not want to talk or negotiate with them. On the same day,
he spoke to Chief Wilson and told her they were ‘‘trying to
better our conditions and see Jim, but he did not want to see
us, so we were going to strike.’’ After Skryzpek’s refusal to
meet with them, the strikers picketed with signs demanding
bulletproof vests, insurance, better wages, and reinstatement
of Chief Short. I find that the Respondent was notified of the
employees’ intention to walk out if Skryzpek did not meet
to discuss their demands and it was informed of the reasons
for the walkout both before and after it commenced.6 This
was sufficient to meet any requirement that the employees’
demands be communicated to the Employer at some relevant
time. I also find that the demand that the Respondent provide
the employees with the equipment and benefits they had been
promised was, from the beginning, an integral part of their
reasons for walking out and was not merely an afterthought
added in order to try to legitimize the walkout.
The Respondent admits that the subjects of providing bul-
letproof vests and benefits had been raised and discussed at
employee meetings with Skryzpek, who ‘‘did not refuse to
discuss these items, or defer them to someone else.’’ That
appears to have been the problem. Despite continuing discus-
sions and promises, nothing was forthcoming. Once they
learned that their principal intermediary with Skryzpek, Chief
Short, had been terminated,7 they were faced with dealing di-
rectly with Skryzpek and decided on a walkout as a certain
means to get his attention and let him know they were seri-
ous about their demands. The employees’ group walkout in
protest over working conditions and benefits was protected
concerted activity under the Act. NLRB v. Washington Alu-
minum Co., supra; Cargill Poultry Co., 292 NLRB 738
(1989); Trident Recycling Corp., supra.
The other two reasons for the employees’ walkout also in-
volved protected activity. Palm and Robinson testified that
they learned on the morning of August 11 that Sergeant
Smith and Chief Short were both suspended pending termi-
nation, Smith, because he left his post without permission to
be with his injured son and, Short, because of a scheduling
problem he claimed he was not his responsibility. They dis-
cussed these terminations as well as their belief that
Skryzpek had reneged on promises to them and concluded:
‘‘[I]t was obvious that this man, Mr. Skryzpek, who we
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In addition to being hearsay, the truth of what is stated in several
of the memos is suspect given the credible and uncontradicted testi-
mony of Kelvin Brewer that when he inquired what had to be done
to get his job back in September, Chief Jackson told him to write
that Palm had forced him to leave his post.
9 Because most of the strikers either walked off their posts or had
just finished a tour of duty, most were armed and in uniform. There
is no evidence that any striker made or threatened to make use of
his or her weapon during the walkout or that anyone was ever ac-
cused of doing so. All those employees who were personally ap-
proached while on duty were similarly armed. There is simply no
credible evidence in the record to suggest that the fact that the strik-
ers were armed was used to influence anyone or that anyone joined
worked for, he didn’t care about us.’’ Their decision to walk
out if Skryzpek would not agree to meet with them followed.
A walkout in support of what is considered the unfair treat-
ment or discharge of a fellow employee is protected by the
Act. Bridgeport Ambulance Service, supra; Cub Branch Min-
ing, supra; Go-Lightly Footwear, 251 NLRB 42, 44 (1980).
I have found that the termination of Short was one of the
several factors that precipitated the walkout. Contrary to the
Respondent’s contention however, the evidence establishes it
was by no means the only factor. In any event, under Board
decisions, a work stoppage to protest a supervisor’s discharge
can constitute protected activity depending on the cir-
cumstances of the particular case. Puerto Rico Food Prod-
ucts Corp., 242 NLRB 899, 900 (1979). Generally, in order
to be protected, the employees’ action must result from their
close relationship with the supervisor whose discharge can
reasonably be expected to have a negative impact on their
own terms and conditions of employment and not merely be-
cause of their concern about the personal loss suffered by the
supervisor. AFSCME, 262 NLRB 946, 947–948 (1982). I
find that to be the case here. Short did not ask for any sup-
port from the strikers and made it clear he could handle his
situation by himself. The evidence establishes that almost all
of the employees involved in the walkout were members of
the sweep team which Short commanded and had recruited
them to join. He was seen as their advocate in their attempts
to get the equipment and benefits they had requested and had
been continually promised by Skryzpek, but which were
never forthcoming. On the night before the walkout, Short
met with sweep team members, advised them of the status
of their requests, and promised to meet with Skryzpek again
to press them. Immediately after the walkout began, the strik-
ers contacted Short and asked him to meet with them. When
he met with them at the park, they sought and received his
advice as to how they should proceed. While at the park,
Short told them that because of his termination Skryzpek was
going to disband the sweep team and reduce their pay from
$6.50 to $6 per hour and would form a new sweep team
under the command of Chief Jackson. I find the evidence es-
tablishes that insofar as the termination of Chief Short was
a motivating factor in the employees’ decision to strike it
was because of the perceived effect it would have on their
own working conditions. Accordingly, I find this aspect of
the walkout was also protected under the Act.
The Respondent contends that the walkout was unpro-
tected because it endangered the residents and nonstriking
guards who remained at CHA posts, involved the use of
threats and intimidation and false information to induce em-
ployees to join, and was undertaken without reasonable no-
tice to the Employer. None of these contentions is supported
by credible evidence. The false information argument is
based on the contention that Palm told other employees that
Chief Short was terminated when he was merely suspended.
As discussed above, the evidence establishes that Short, him-
self, told Palm and others that he had been ‘‘suspended
pending termination,’’ the same phrase used that morning to
inform Sergeant Smith that he had been terminated. There is
nothing in the record to suggest that Palm or any other par-
ticipant in the walkout had reason to believe on August 11,
or for weeks thereafter, that Short had not been terminated.
The Respondent has failed to establish that any employee
joined the walkout due to intimidation. Its reliance on state-
ments in memos submitted by various employees attempting
to get their jobs back is misplaced. These hearsay documents
were put into evidence by the General Counsel to establish
that the strikers had made offers to return to work. They
were neither offered nor received for the truth of what is
stated therein.8 The Respondent’s attempt to establish that
Natline Jones, who has since been reinstated by it, joined the
walkout because she was threatened and intimidated was un-
successful. Insofar as it can be understood, her testimony was
that shortly after she went on duty at 4 p.m., a group of
sweep team members, most of whom she knew at least by
sight, arrived outside her building in cars. Some of them
came to her post, told her that Chief Short had been termi-
nated, and that they had walked out. They asked her if she
was with them or against them and said, if she was with
them, to do ‘‘a 1099’’ because Chief Short needed support.
She said she was also told that she would be removed from
the sweep team and that she would lose the raise she had
received when she joined. I have already indicated that I
found Jones’ testimony confused and less than credible. It
appears that she selectively remembered certain things that
were said and/or took them out of context in order to obtain
reinstatement by the Respondent and repeated them at the
hearing. It further appears that she was told what Short had
earlier told the strikers about Skryzpek’s intention to abolish
the current sweep team and reduce their wages and conjured
it into a threat by the strikers as to what would happen to
her if she did not join the walkout. I did not believe her and
find the evidence as a whole establishes her participation in
the walkout was voluntary and uncoerced.
The Respondent also points to the testimony of Mario Wil-
liams as establishing that the strikers engaged in acts of in-
timidation. Williams, who did not join the walkout and is
still employed by the Respondent as a supervisor, testified
that at about 10:15 a.m. on August 11 he saw a group of
15 to 20 officers approaching his building. He said that Palm
and other leaders of the group came to the entrance of his
building and asked him to walk out because the Company
‘‘pulled the guards too short.’’ Williams told them that he
would not join them. Sometime later he received a telephone
call and identified the voice as that of Palm. The caller asked
why he didn’t walk out and said ‘‘something was going to
happen to us if we didn’t walk.’’ I find that this testimony
fails to establish that the strikers engaged in intimidating be-
havior and that it fails to establish that Williams was threat-
ened by Palm in order to coerce him to join the walkout.
Williams’ claim that he considered the telephone call a threat
because Palm was armed lacks credibility.9
421FEDERAL SECURITY, INC.
the walkout or felt threatened because of it. The Respondent’s at-
tempt to interject this as an issue is completely unwarranted.
10 The only evidence of a disruption caused by the walkout was
the testimony of Mario Williams that up to 200 residents con-
gregated in the lobby of his building when a group of 15 to 20 strik-
ers walked up to the outside of the building and asked him to join
them. According to Williams, the residents wanted to know what
was going on and it took him and the building president nearly an
hour to restore order there. There was nothing in his testimony to
indicate that the strikers made any attempt to communicate with or
agitate the residents. It appears that the only reason there was a
crowd in the lobby was that Williams had locked the doors and
would not let anyone in or out.
11 Tackett testified that he did no investigation concerning the
walkout. The evidence shows that radios were removed in cases
where no officer remained at a post and that all were turned in to
the Respondent’s office. I find this additional evidence that what ac-
tually had occurred during the walkout was of little concern to the
Respondent and that it was mainly interested in justifying its termi-
nation of the strikers.
12 Shortly after the walkout began, Company Vice President Jan
Skryzpek told Lovetta Short that they were going to terminate all of
those who walked out and ‘‘Joe Palm, especially, because he was
the ringleader.’’
13 Skryzpek testified that the matter was investigated by William
Buford, who submitted some reports to him. Buford was not called
as a witness, and no written reports were produced. Palm, who was
identified as a leader of the walkout by the Respondent, credibly tes-
tified that when he went to the office on August 16 and attempted
to speak to him, Buford told him, ‘‘you don’t need to talk to me,
you need to talk to Jim.’’
Using an objective standard, the evidence does not estab-
lish that there was any intimidation. The strikers only ap-
proached sites where other sweep team members were
known to be on duty. The evidence indicates these individ-
uals generally knew one another and often socialized together
at the Queen of the Sea. While at some sites a group of sev-
eral strikers arrived together, only one or two actually went
to speak to the guards on duty and ask them to join the
walkout. Palm, who all would agree is a large and imposing
man, told some, ‘‘you are with us or you are against us.’’
There is no evidence that this was accompanied by any
threatening gestures and, while it may have put some psy-
chological pressure on sweep team members to join their
peers, it cannot reasonably be construed as a threat. See
Leaseco, Inc., 289 NLRB 549 fn. 1 (1988). Obviously, a
large person is entitled to exercise rights protected by the Act
and there is no evidence Palm attempted to use his size to
intimidate anyone.
Finally, the Respondent contends that the walkout was un-
protected because it compromised the safety of the residents
of CHA properties and that of nonstrikers who were left
alone at some locations. There is no evidence that any harm
resulted from the fact that certain building posts were left un-
manned for a brief period on August 11.10 According to the
testimony of Chief Tackett, once the walkout began at 10
a.m., it took only 20 minutes to cover every post that had
been walked off. Under the circumstances presented here, it
is the Respondent’s actions on August 11 which cannot with-
stand scrutiny. The evidence shows that it was made aware,
by shortly after 8 a.m., of the possibility of a walkout at 10
a.m. unless Skryzpek agreed to meet with employees, yet, it
took no action to either prevent the walkout by agreeing to
meet, to have people available to cover posts once the walk-
out began, or to see that CHA security or the Chicago police
were notified. There was no explanation as to why Skryzpek
was silent from 8 to 10, but was on the radio threatening that
participants in the walkout would be barred from CHA prop-
erty within minutes of the first ‘‘1099’’ being called in. I
find that the strikers acted reasonably in giving the Respond-
ent adequate notice of the walkout sufficiently far in advance
that it could have taken the necessary steps to see that no
post was uncovered at any time. Accordingly, their actions
did not lose the protection of the Act. Columbia Portland
Cement Co., 294 NLRB 410, 421–422 (1989).
F. The Strikers Were Unlawfully Terminated
The evidence shows that on learning that the walkout was
taking place on August 11 the Respondent informed its em-
ployees that anyone who walked off a post would be placed
on the bar list. Skryzpek made such an announcement over
the radio. Tackett told several employees who telephoned the
office that morning the same thing and told Michael Dav-
enport that anyone who walked off a post was automatically
terminated. Skryzpek informed Lovetta Short that anyone
who walked off was to be terminated because if they were
barred from CHA properties there were no other jobs for
them. The Respondent effectively terminated Palm and the
employees who walked off their posts on August 11 by fail-
ing to assign them to any further duty. Tackett signed iden-
tical disciplinary forms, dated August 11, for each striker,
except Palm, stating: ‘‘officer abandoned post, also removed
2 way radio, telephone and all paper work.’’ Each form also
indicates that the officer was ‘‘replaced.’’11 All of the strik-
ers, including Palm, were sent letters, dated August 17, stat-
ing that they had ‘‘been replaced’’ because they had aban-
doned their posts on August 11 and had not returned to work
and informing them to turn in their credentials and pagers by
August 20. James Skryzpek also testified that they were ‘‘re-
placed,’’ however, it is clear that use of this term does not
mean that their positions had been filled by replacement
workers, it means only that as far as the Respondent was
concerned, ‘‘they were not coming back to work.’’ It made
this determination immediately after the walkout and before
any employee had actually been placed on the bar list by
CHA.12 Although it claims to have conducted an investiga-
tion of the walkout, there is no evidence that it did anything
other than identify some of the employees who participated
in it.13
The complaint alleges that the Respondent requested that
CHA place the employees who participated in the walkout on
the bar list. While the evidence fails to establish that such
a request was made, it does show that the Respondent was
responsible for the fact that some of its employees were put
on the bar list and were thereby disqualified from further em-
ployment not only with it but any CHA contractor. The testi-
mony of Brian Lundin, who was director of security for
CHA at the time, and documents from CHA files show that
except during the beginning of the walkout on August 11,
when he sent two field coordinators out to see what posts
were affected and checked one location himself, he made no
independent investigation or evaluation of the walkout, but
relied solely on what the Respondent told him about it before
he took action to place certain of the participants on the bar
list or, thereafter, to remove them from it.
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 These include memos from Kendell Harris, Dwaine Taylor,
Charles O’Neal, Harry Hurd, and Natline Jones.
15 The credible and uncontradicted testimony of Charles Robinson
establishes that Dwaine Taylor and Kendell Harris, who were never
placed on the bar list, were early and enthusiastic supporters of the
walkout and that both came to Robinson’s post to discuss it well be-
fore the walkout started. The memos submitted by O’Neal and Jones
identify Taylor as one of those soliciting them to join the walkout.
It was Harris’ wife who counseled the strikers at the Queen of the
Sea Restaurant on the evening of August 11, long after the walkout
commenced. Yet, by also being among the first to denounce the
walkout and claim intimidation, Taylor and Harris, with the help of
the Respondent, avoided ever being put on the bar list and were re-
turned to work. The reason is obvious. The work involves low pay,
long hours, and considerable risk and it is difficult to get people to
do it. Once the strike was over, the Respondent was more than will-
ing to take back anyone who was willing to come back with the ex-
ception of Palm and Robinson, whom it undertook to make examples
of for leading the walkout. The credible and uncontradicted testi-
mony of Kelvin Brewer was that, in September, when he went to
the Respondent’s office to see about getting his job back, Chief
Jackson told him to write a letter stating that Palm had forced him
to leave his post by threatening him and showed him a copy of one
written by Natline Jones to use as an example.
16 Its claimed reliance on the fact the strikers were barred from
CHA property amounts to a pretext as, at that point, none of them
were on the bar list.
It also appears that the employees were placed on the bar
list as a result of erroneous and/or incomplete information
supplied by the Respondent. Although the Respondent ad-
vised Lundin, in a August 17 letter, that it was investigating
the reasons for the walkout and that statements by the strik-
ers’ spokesman indicated that they were dissatisfied with
wages, benefits, and overtime, it subsequently advised him,
in a series of letters seeking removal of certain persons from
the bar list, that the sole reason for the walkout was to pro-
test the action taken against Chief Short and had ‘‘nothing
to do with any labor dispute as earlier reported.’’ The evi-
dence shows that Skryzpek accepted and passed on to
Lundin memos he received from various participants in the
walkout14 which stated, inter alia, that they were threatened
and forced to leave their posts by other strikers. In forward-
ing these memos and asking that the writers be removed
from the bar list, Skryzpek implied that the statements in the
memos were true when in fact the Respondent had made no
meaningful investigation of what occurred.15
Despite its attempt to place the onus for their termination
on the strikers for not returning to work, I find that, on Au-
gust 11, the Respondent terminated the employees who par-
ticipated in the walkout. Lenape Products, 283 NLRB 178,
181 (1987). I also find that it did so solely because they had
participated in the strike.16 In doing so, it violated Section
8(a)(1) of the Act. Trident Recycling Corp., supra at 1261;
Holiday Inn, 274 NLRB 687, 690 (1985). Because it was re-
sponsible for getting the strikers placed on the bar list by
means of the misinformation it provided Lundin about the
walkout, the Respondent cannot use their being on the list
to avoid responsibility for failing to reinstate them. Finally,
its ‘‘bar list defense’’ fails for another reason. The evidence
shows that CHA had no regulation or policy which purports
to limit the rights of its contractors’ employees to engage in
a lawful strike and that Lundin exercised what he considered
to be his personal discretion in placing strikers on or remov-
ing them from the bar list. It is clear however that neither
CHA nor its officials have any power to limit rights con-
ferred by Section 7. See Machinists Lodge 76 v. Wisconsin
Commission, 427 U.S. 132 (1976); San Diego Unions v.
Garmon, 359 U.S. 236 (1959).
G. Joseph Palm and Charles Robinson
In addition to its claim that certain of the strikers were
precluded from continued employment solely because they
were put on the bar list by CHA, the Respondent contends
that it was justified in terminating Palm and Robinson be-
cause of their actions during the walkout. This requires an
analysis of its motivation for its actions with respect to those
employees in accordance with the test outlined by the Board
in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under Wright Line, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once that has been done, the burden shifts to the
respondent to demonstrate that it would have taken the same
action even in the absence of protected activity on the part
of its employees.
It is undisputed that it was the employees’ participation in
the walkout that resulted in their being terminated. I have
found that the walkout constituted protected concerted activ-
ity and that terminating the participants violated Section
8(a)(1). This satisfies the General Counsel’s burden under
Wright Line. I find that the Respondent has not established
that Palm and Robinson engaged in misconduct during the
walkout which justified their termination and denial of rein-
statement. As noted above, there is no evidence that the Re-
spondent made any real effort to investigate what occurred
during the walkout. None ever talked to Palm and Robinson
about their actions or gave them the opportunity to defend
themselves against allegations that they got employees to
join the walkout through intimidation. The Board has consid-
ered an employer’s failure to provide employees with spe-
cific information about their alleged misconduct or to afford
them the opportunity to explain their actions to be significant
factors in findings of discriminatory motivation. E.g., Burger
King Corp., 279 NLRB 227, 239 (1986); Syncro Corp., 234
NLRB 550, 551 (1978). The Respondent relies on the gen-
eral testimony of Jan Skryzpek that during the walkout she
received telephone calls from unidentified employees who
said they were being threatened and the memos various
walkout participants subsequently submitted to the Respond-
ent in an effort to get their jobs back as establishing that
Palm and Robinson were involved in intimidating employees
to join the walkout. The self-serving nature of the statements
contained in some of the memos is obvious, yet, it appears
that the Respondent not only accepted them as true without
any attempt to corroborate them, but suggested that others
adopt the same approach. I do not credit Jan Skryzpek’s tes-
timony concerning the telephone calls she allegedly received
as it was totally lacking in detail as to who was threatened
or what the alleged threats involved. The testimony of
Lovetta Short that Jan Skryzpek told her at the start of the
walkout that Palm would be terminated for his role in lead-
ing it shows that she and the Respondent had decided to pun-
ish him before there were any allegations of intimidation
made against him. I find that the Respondent has failed to
423FEDERAL SECURITY, INC.
17 The Respondent points to a memo that Palm wrote in July 1992
as establishing his supervisory status because he states therein that
he was ‘‘in charge’’ of the sweep team. When read in context, the
statement is entirely consistent with the evidence that he often vol-
untarily assisted Chief Short in seeing that posts in swept buildings
were covered. Not only did the Respondent not put him in charge
of the sweep team, it never gave him authority to make assignments
for its members. In this instance, he was being threatened with dis-
ciplinary action by Chief Wilson for leaving his assigned post in
order to go to a swept building to see that it was properly covered.
If anything, this is further evidence of Palm’s lack of authority to
exercise any independent judgment.
provide any credible evidence that Palm and Robinson en-
gaged in misconduct during the walkout that disqualified
them from further employment by it or that it had a reason-
able basis for believing that they had engaged in such mis-
conduct. Ornamental Iron Work Co., 295 NLRB 473, 478
(1989); Clear Pine Mouldings, 268 NLRB 1044, 1046
(1984). Accordingly, I find that it has not established that it
would have terminated and failed to reinstate them in the ab-
sence of protected activity on their parts and that its actions
violated Section 8(a)(1).
H. Supervisory Status of Joseph Palm
The Respondent contends that Palm’s actions during the
walkout were not protected because he was a supervisor. The
burden of establishing supervisory status is on the party al-
leging that it exists. Soil Engineering Co., 269 NLRB 55
(1984); RAHCO, Inc., 265 NLRB 235, 247 (1982). In mak-
ing determinations concerning such status, it is important not
to construe it too broadly lest an employee be denied rights
which the Act is intended to protect. Chicago Metallic Corp.,
273 NLRB 1677, 1689 (1985); Westinghouse Electric Corp.
v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970). That is par-
ticularly pertinent in the unique situation presented here
where the employer, although it did not confer any super-
visory authority on Palm, claims that he exercised it and,
therefore, should be denied the protection of the Act. The
Respondent’s argument is that Palm was a supervisor be-
cause he did ‘‘a considerable amount of scheduling and
awarding overtime work to certain employees.’’ There was
evidence that Palm regularly assisted Chief Short in prepar-
ing schedules for the sweep team and in seeing that posts in
swept buildings were covered. I find the evidence fails to es-
tablish that this involved the exercise of true independent
judgment ‘‘in the interest of the employer’’ or was more than
routine and clerical in nature. Palm held the same rank of
sergeant and was paid at the same rate as other sweep team
members. There is no evidence that he had any actual au-
thority to put himself or anyone else on the work schedule,
that he was ever assigned by the Respondent to do so, or that
he was ever compensated by it for doing so. The evidence
was that Palm, who obviously took pride in being part of the
sweep team, often, on his own time, assisted Chief Short,
whom he considered a good friend, in sending sweep team
members to various posts that needed sweep team coverage.
This involved telling members, who were already scheduled
to work as ‘‘floaters,’’ to which buildings they should go and
finding members who were not scheduled to work but were
willing to cover open posts by working overtime. He did this
by contacting them and asking them if they would be willing
to work overtime or, in some cases, sweep team members
who wanted to work overtime would call him to see if any
posts were open. There is no evidence that he had authority
to direct any employee to take a particular post or to work
overtime or that he acted independent of Short’s supervision
and direction.17 Chief Tackett testified that, in early June
1992, he was informed by some employees that they had
gone to posts other than to those they were assigned because
Palm told them to do so. Even if he did this and acted with-
out specific orders from Short, this alone does not make him
a statutory supervisor. According to Tackett, once he learned
about it, he informed Chief Short what had happened and he
stopped Palm from doing so ‘‘within a week.’’ It is clear that
‘‘the exercise of some supervisory authority in a merely rou-
tine, clerical, perfunctory, or sporadic manner does not ele-
vate an employee into the supervisory ranks,’’ Chicago Me-
tallic Corp., supra at 1689.
I. Elimination of the Sweep Team
Following the walkout, the Respondent disbanded the
sweep team. This meant that those few employees, who par-
ticipated in the walkout and were allowed to return to work,
were reduced in rank from sergeant to security officer and
were paid at a lower hourly rate than they had received as
members of the sweep team. There was no evidence of any
substantial or legitimate business justification for such action.
On the contrary, the testimony of Jan Skryzpek was that this
was done because sweep team members had walked out. The
Respondent’s failure to return these employees to their
former or substantially equivalent positions of employment
because they participated in protected activity violated Sec-
tion 8(a)(1). NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967).
CONCLUSIONS OF LAW
1. The Respondent, Federal Security, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The walkout engaged in by the Respondent’s employees
on August 11, 1992, was concerted activity protected by Sec-
tion 7 of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Maintaining a rule or regulation which prohibited its
employees from participating in or supporting any strike,
work stoppage, or other concerted refusal to perform duties.
(b) Threatening employees with termination and being
barred from working on CHA property if they participated in
a protected walkout.
(c) Coercively interrogating an employee concerning pro-
tected activities.
(d) Terminating those employees who participated in a
protected walkout on August 11, 1992.
(e) Misinforming CHA as to the nature of the walkout,
which resulted in certain of the participants being barred
from working on CHA property.
(f) Reducing the rank and wage rates of those sweep team
members who were permitted to return to work after partici-
pating in the walkout and disbanding the sweep team because
certain of its members had participated in it.
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1)
by unlawfully terminating employees Kelvin Brewer, Elliot
Burdan, Tilman Dudley, Everett Green, Kendell Harris,
Harry Hurd, Samuel Jackson, Zachary Jernigan Jr., Jerry
Johnson, Natline Jones, Charles O’Neal, Joseph Palm,
Charles Robinson, John Salley, Dwaine Taylor, James Thom-
as, Sylvester Wilder, Leslie Williams, and Kenneth Wright,
I shall recommend that it be required to offer them imme-
diate and full reinstatement to their former positions as mem-
bers of the sweep team or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges previously
enjoyed, and make them whole for any loss of earnings or
other benefits they may have suffered as a result of their un-
lawful discharges, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest, computed as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]