J.K. Guardian Services, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1999

327 N.L.R.B. 614 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
J. K. Guardian Security Services, Inc. and Steven
Kissel. Case 13–CA–33699
February 12, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On June 29, 1998, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s ruling, findings,1 and conclusions and
to adopt the recommended Order.

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 all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We find no merit in the key arguments made by the Respondent in
support of its exceptions. The following examples are not comprehen-
sive, but are representative of the Respondent’s inadequate treatment of
credited facts.
In seeking to refute the judge’s finding that Kissel engaged in union
and other protected activities before his discharge on July 26, 1995, the
Respondent asserts that Kissel did not file his complaint with the U.S.
Department of Labor (DOL) until July 27, 1995, 1 day after his dis-
charge. Although the filing date stamped on the complaint is July 27,
the Respondent’s argument ignores credited evidence that Kissel held
preliminary discussions with the DOL before the formal complaint was
filed, and between April and July, discussed his DOL activities with
several of the Respondent’s supervisors and managers on a number of
occasions.
Similarly, in contesting the judge’s finding that Kissel solicited
proxies for a contract ratification vote before his termination, the Re-
spondent relies on the fact that the Respondent’s final wage proposal
was not proffered until after the contracting agency (the Federal Protec-
tive Service of the U.S. General Services Administration) approved the
proposed wage rate, months after Kissel’s discharge. This argument
ignores the Respondent’s own evidence that, by letter of June 8, 1995,
it confirmed in a memorandum to the unit employees’ union, that it had
submitted for approval the wage and other proposals the parties dis-
cussed in a meeting on June 6. Thus, by early June, the parties’ inten-
tions regarding the tentative collective-bargaining agreement were
apparent, and there was sufficient information available for Kissel and
others to form an opinion about the agreement.
As a final example, we note that the Respondent continues to insist
that Kissel was disciplined and discharged for his repeated uniform and
equipment violations. As addressed by the judge, there is substantial
doubt on the record that Kissel received the only other prior similar
warning purportedly issued on January 5, 1995. In any case, the Re-
spondent has failed to explain, or even to acknowledge, the testimony
of Lieutenant Thomas Accardo and Manager Scott Friedrich that it was
the Respondent’s policy and responsibility to replace worn uniforms
and broken equipment that occur through normal wear and tear. The
Respondent has not refuted the credited evidence that, consistent with
the Respondent’s policy, Kissel reported his uniform and equipment
problems in February and April 1995, and that the Respondent failed
timely to remedy the problems. Nor has the Respondent claimed that
Kissel’s uniform and equipment problems were attributable to other
than normal wear and tear.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, J.K. Guardian Services, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Paul Hitterman Esq., and Peter Hines, Esq., for the General
Counsel.
Douglas A. Darch, Esq., and S. Leigh Jeter, Esq., for the Re-
spondent.
Steven Kissel, for the Charging Party.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case
involves the issue of whether the Respondent’s discharge of
Steven Kissel violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act).2 On the entire record, including
my observation of the demeanor of the witnesses, and after
consideration of the parties’ arguments, I find that the Respon-
dent has violated the Act as alleged.
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Inde-
pendent Guards and Watchmen of America Union (the Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
II. BACKGROUND
The Respondent is a contractor with the Federal Government
General Services Administration (GSA) designated to provide
security at various facilities, including some in Illinois. The
Respondent’s guard employees working under the Federal con-
tract in Chicago are represented by the Union. The Respon-
dent’s supervisory hierarchy at the relevant time consisted of
vice president, Mike Malinowski; corporate secretary, Ken
Kotz; contract manager, Scott Friederich; Captain Michael
Grady; Captain Scott Douglas; and Lieutenant Thomas Ac-
cardo.
The Charging Party, Steven Kissel, was employed by the Re-
spondent as a guard in the Chicago, Illinois area. In January
1995 Kissel was allegedly reprimanded by Sergeant Grady for
having nonissue rubber grips on his service revolver.3 Fried-
erich asserted that he also spoke to Kissel about the matter.
Kissel recalled discussion with Friederich about rubber grips
but credibly testified that he did not recall being told they

1 This case was heard at Chicago, Illinois, on December 16–17,
1996, and April 15, 1998. All dates in this decision refer to 1995 unless
otherwise stated.
2 29 U.S.C. § 158 (a)(1) and (3).
3 Grady was subsequently promoted to captain and at the time of the
hearing was no longer employed by the Respondent. The Respondent
sought to obtain his testimony by serving him with a subpoena. Grady
refused to honor the subpoena and enforcement proceedings took place
in Federal district court. After the enforcement action was successfully
concluded, Grady again failed to appear to give testimony. I then de-
clared him “unavailable” under the terms of the Federal Rules of Evi-
dence, and the Respondent proceeded with its case. Fed.R.Evid. 804
and 807.
327 NLRB No. 116
J. K. GUARDIAN SECURITY SERVICES 615
should be removed. Kissel continued to have the rubber grips
on his revolver until shortly before his July discharge. The Re-
spondent said nothing further to Kissel about the grips until the
time of his discharge.
In February Kissel notified the Respondent in writing that his
issue holster had broken and he was thus wearing his own pistol
belt and holster. On April 20, Kissel wrote a note to his super-
visor, Captain Douglas,4 explaining that he had certain broken
equipment (holster, badge, name plates, and nightstick ring)
that he was asking be replaced. Kissel also had conversations
with Douglas and asked the captain to get a replacement holster
but nothing was done at the time in this regard. During early
1995 Kissel also was wearing black uniform pants and not the
dark blue trousers that were the standard. Kissel continued to
wear this nonstandard equipment and uniform until his dis-
charge on July. The Respondent asserts that it was these uni-
form and equipment violations that were the sole reason for his
discharge.
III. KISSEL’S UNION ACTIVITIES
Kissel was a member of the Union and became dissatisfied
with its representation of employees. In approximately March,
Kissel was contacted by another guard seeking employees’
signatures on a petition to decertify the Union. Kissel told the
employee that he would check with the Department of Labor
(DOL) about the matter of electing new officers instead of de-
certifying the Union. Kissel went to the DOL to discuss his
belief that the Union had for several years failed to hold elec-
tions of officers. Kissel also discussed his contact with the DOL
with some of Respondent’s supervisory officers.
In late May or early June, the Respondent and the Union be-
gan discussions concerning a new collective-bargaining con-
tract. In May, Supervisor Lieutenant Accardo asked Respon-
dent’s vice president, Mike Malinowski, if he had begun nego-
tiating a new union contract. Malinowski stated he had and it
looked favorable for the Company. In union meetings subse-
quently held to discuss the contract, Kissel argued for the inclu-
sion and exclusion of certain provisions in the new agreement
that contrary to what the Respondent or the Union had been
proposing. Kissel was dissatisfied by the response he received
from the Union to his views. He then began a campaign to ob-
tain proxies from fellow guards to control their votes over rati-
fication of the new collective-bargaining contract. Kissel again
discussed his dissatisfaction with the Union’s contract stance
and his proxy efforts with some Respondent’s supervisory offi-
cers.
In June, Lieutenant Accardo was asked by Captain Grady if
he knew anything about Kissel and three other guards engaging
in an effort to vote out the Union. Accardo said he did not
know anything about the matter. Grady said he had been talking
to Kissel about the matter and had told him how to go about
obtaining proxy votes. Accardo then asked Contract Manager
Friederich if he knew about the matter. Friederich acknowl-
edged that he had already learned what was happening.
In early July, Accardo was asked by Friederich if he knew
anything about a petition that was being circulated by the em-
ployees. Accardo asked what the petition was about and Fried-
erich told him it concerned the Union having a “new election.”
Accardo said he had not heard anything about it but to ask Cap-
tain Grady as he was “helping out the Union.”

4 Captain Scott Douglas was not called as a witness at the hearing.
IV. KISSEL’S DISCHARGE
In late July, Accardo was in the supervisor’s office and
picked up the telephone. He overheard a conversation between
Captain Grady and Vice President Mike Malinowski concern-
ing Steven Kissel. Malinowski told Grady to make sure he
“finds something on Kissel,” that he wanted to get rid of him
“as soon as possible.” Grady assured Malinowski that he would
do what he could about Kissel. Malinowski, a shareholder in
the Respondent’s corporation, did not testify. His absence was
not accounted for by the Respondent. Thus, Accardo’s testi-
mony that Malinowski wanted to find an excuse to get rid of
Kissel is unrebutted. Under the adverse inference rule when a
party has relevant evidence within its control which is not pro-
duced, that failure gives rise to an inference that the evidence is
unfavorable to the party. Auto Workers v. NLRB, 459 F.2d
1329 (D.C. Cir. 1972). Such an inference is appropriate in this
case. I find that, had Malinowski testified, his testimony would
have been adverse to the Respondent’s assertion that Kissel was
ultimately terminated solely because of his violations of the
uniform and equipment regulations. International Automated
Machines, 285 NLRB 1122, 1122–1123 (1987). Respondent’s
corporate secretary, Ken Kotz, testified that Malinowski did not
have anything to do with Kissel’s discharge. Considering the
Kotz’s demeanor and the record as a whole, I do not credit this
testimony.5
Approximately the next day Grady and Friederich had a
meeting with Mike Malinowski. Later that day Grady told
Accardo that he “[h]ad a very important mission that he had to
take care of.” The following day Accardo was in Friederich’s
office and noticed a disciplinary form containing Kissel’s
name. He asked Friederich about the form and was told Grady
had written up Kissel for not having his duty holster, having
unauthorized speed loaders and not having his hat. Accardo
asked Friederich why Grady had written Kissel up when he
already knew about his “problem” of having broken equipment.
Accardo asked if this was the very important mission that
Grady was on. Friederich looked at Accardo and shook his head
yes and no, and smiled. Later in the day Accardo saw Grady
and asked him if Kissel’s writeup was the important mission
that he was supposed to be on. Grady said it was, that he had to
write Kissel up because that was what he was told to do by
Malinowski.
On July 25, Captain Grady finally brought a replacement
holster for Kissel to wear. Grady inspected Kissel at the same
time and wrote him up for the following violations: (1) wearing
basket weave leather equipment; (2) wearing a nonregulation
security police badge; (3) wearing additional ammunition; (4)
no name plate; (5) carrying pepper spray; (6) no hat: (7) wear-
ing a shooting award pin; (8) not having a night stick; and (9)
having rubber grips on his revolver.
Kissel testified that he had never been warned about the rub-
ber grips. His badge, name plate, and baton ring had been bro-
ken for some time and not replaced by the Respondent even
though he had reported their breakage. He was wearing the
5 According to Accardo, Malinowski had made known the year be-
fore that he did not like Kissel and wanted to get rid of him at some
point. Apparently this ill feeling resulted from an unemployment claim
that Kissel had filed that Malinowski was involved with during a dif-
ferent period of employment. As noted Malinowski did not testify to
clarify this matter. The Respondent did not assert that this ill feeling
had anything to do with Kissel’s discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
same black pants that he had worn for some months because he
did not have a pair of blue pants that fit. Kissel signed the
writeup prepared for him by Grady. The written reprimand he
signed had writing added to it subsequently that Kissel did not
see. That writing included a notation: “Suspension pending
dismissal per GSS,” followed by Grady’s initials and the date
7/25/95. Kissel was not suspended on July 25.
The following day, Captain Grady returned to the post and
again issued a writeup to Kissel. This time the warning states:
(1) rubber grips on revolver; (2) wearing a nonregulation
badge; (3) not wearing hat; (4) not carrying baton; (5) wearing
black uniform pants; (6) not wearing a name plate; (7) wearing
shooting medal; and (8) carrying extra ammunition.
Kissel’s testimony refutes much of the July 26 writeup. Kis-
sel stated that he had replaced his holster with that brought to
him by Grady the day before and was not wearing his own
leather. Kissel said he had replaced the rubber grips on his re-
volver with the standard issue grips. He admitted that he did not
have on a different badge, name plate, nor was he carrying his
night stick in a belt ring. All of these items were still broken
and had not been replaced by the Respondent. He was wearing
black pants, but as noted had been told they were unacceptable
before July 25, even though he had worn them for some time.
Grady received a call on July 26 that he was to report to
Friederich the following morning before going to his post. Kis-
sel met with Friederich as directed at the latter’s office. Kissel
was not dressed for duty at the time but was dressed in the
black uniform pants he had worn before. Kissel testified that
this was the only pair of uniform pants he had to wear. Fried-
erich told Kissel he was being suspended for his failure to heed
the warnings he had received. Friederich then received a tele-
phone call from Kotz who told him to discharge Kissel. Fried-
erich then informed Kissel that he was being terminated.
Analysis
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent’s action alleged to constitute discrimination in
violation of Section 8(a)(3). The elements commonly required
to support such a showing of discriminatory motivation are
union activity, employer knowledge, timing, and employer
animus. Once such unlawful motivation is shown, the burden of
persuasion shifts to the Respondent to prove its affirmative
defense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). The
test applies regardless of whether the case involves pretextual
reasons or dual motivation. Frank Black Mechanical Services,
271 NLRB 1302 fn. 2 (1984). “A finding of pretext necessarily
means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the
inference of wrongful motive established by the General Coun-
sel.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
sub nom. 705 F.2d 799 (6th Cir. 1982).
The Government has shown that Kissel was engaged in un-
ion activity at the time of his discharge and that some of the
Respondent’s supervisors had knowledge of that activity. The
uncontroverted evidence shows Malinowski, contemporaneous
with Kissel’s union activities, directed that Grady find a reason
to discharge Kissel. Such a command is consistent with a desire
by the Respondent to rid itself of an employee who was seeking
a tougher stance by his union in collective bargaining with the
Respondent. I find that the Government has met its initial bur-
den of establishing that a motivation for Kissel’s discharge was
his union activity. The Respondent’s defense centers on the fact
that Kissel had ignored equipment and uniform regulations.
This defense, however, does not fully explain why Kissel’s lack
of regulation gear had not been an issue for several months
before he engaged in his efforts to improve the union’s contract
proposals. Importantly the Respondent did not call Malinowski
as a witness to deny or explain his order that Grady find some
excuse to get rid of Kissel. I infer from the record as a whole
that the directive was to find a pretext to discharge Kissel and
that, at least in part, motivated by Kissel’s union activity. I
therefore, find that the Respondent violated Section 8(a)(1) and
(3) of the Act when it discharged Kissel. Wright Line, supra.
CONCLUSIONS OF LAW
1. J. K. Guardian Security Services, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Independent Guards and Watchmen of America Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent has violated Section 8(a)(1) and (3) of the
Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended6
ORDER
The Respondent, J. K. Guardian Security Services, Inc., Chi-
cago, Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engaged in union
activities.
(b) 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 Steven
Kissel 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 previ-
ously enjoyed.
(b) Make Steven Kissel whole for any loss of earnings and
other benefits suffered as a result his discharge, computed on a
quarterly basis, 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).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the Steven Kissel’s discharge, and
within 3 days thereafter notify him in writing that this has been

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
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 pur-
poses.
J. K. GUARDIAN SECURITY SERVICES 617
done and that the written warning, suspension and discharge
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 necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Chicago, Illinois, copies of the attached notice
marked “Appendix.”7 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 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 the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since July 27, 1995. Excel Container, 325 NLRB 17
(1997).
(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

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge employees because they engage
in union activities involving the Independent Guards and
Watchmen of America Union or any other labor organization.
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 within 14 days from the date of the Board’s Or-
der, offer Steven Kissel full reinstatement to his former job or,
if his 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 Steven Kissel whole for any loss of earn-
ings and other benefits resulting from his suspension and dis-
charge, 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 discharge of
Steven Kissel, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the written
warning, suspension and discharge will not be used against him
in any way.

J. K. GUARDIAN SECURITY SERVICES, INC.