M.V.M., Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2008

352 N.L.R.B. 1165 (N.L.R.B. 2008)

M.V.M., INC.
352 NLRB No. 133
1165
M.V.M., Inc. and Marcial Rodriguez. Case 24–CA–
10681
August 29, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 25, 2008, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party filed a brief in opposition to the Respondent’s ex-
ceptions, and the General Counsel filed a brief in support
of the judge’s decision.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, M.V.M., Inc., San Juan,
Puerto Rico, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 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.
3 In adopting the judge’s finding that the Respondent unlawfully in-
terrogated employee Marcial Rodriguez, we find it unnecessary to rely
on the fact that Rodriguez was not given a copy of his letter to review
before the interrogation or that Rodriguez did not expect the United
States Marshals Service to reveal the letter to the Respondent. Consid-
ering the remaining circumstances, thoroughly described by the judge,
the Respondent’s interrogation of Rodriguez had a reasonable tendency
to interfere with, restrain, or coerce employees in the exercise of pro-
tected activity.
Maria M. Fernandez, Esq. and Efrain Rivera Vega, Esq., for
the General Counsel.
Jason M. Branciforte, Esq. (Littler Mendelson, P.C.), of Wash-
ington, D.C., for the Respondent.
Harold Hopkins, Esq., of San Juan, Puerto Rico, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in San Juan, Puerto Rico, on November 8, 2007. I reopened the
record on discovering that the court reporter had irretrievably
lost, without transcribing, almost all the trial testimony given
on November 8 by Freddie Barreto, one of the witnesses for the
General Counsel. On January 22, 2008, the trial was recon-
vened by video conference so that Barreto could be recalled
and his testimony made a part of the record.1
Marcial Rodriguez, an individual, filed the original charge
on June 22, 2007, and an amended charge on September 21,
2007. The Regional Director for Region 24 of the National
Labor Relations Board (the Board) issued the complaint and
notice of hearing on September 21, 2007. The complaint al-
leges that MVM, Inc. (the Respondent or MVM) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act) when
it interrogated Rodriguez about his union and/or concerted
activities, and violated Section 8(a)(3) and (1) by suspending,
discharging, and refusing to reinstate Rodriguez because he
engaged in union and/or other protected activities. The Re-
spondent filed a timely answer in which it denied committing
any of the violations alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following

1 None of the parties objected to conducting the resumed trial by
video conference. The Respondent did, however, object to Barreto’s
testimony being retaken at all—whether by video conference or other-
wise. The Respondent argued that it would be prejudiced because
Barreto “already had the benefit of hearing [the Respondent’s] cross
examination,” and therefore could “change his answers. “ After con-
sidering the matter, I concluded that concern that Barreto would inten-
tionally alter his sworn testimony was speculative, and that any harm to
the integrity of the record that was raised by that possibility was out-
weighed by the harm that would necessarily follow from the near total
exclusion of Barreto’s testimony from the record. I considered, inter
alia, that Barreto was a significant witness, a current employee of the
Respondent, see Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22
(1977) (testimony of a current employee that is adverse to his employer
is “given at considerable risk of economic reprisal, including loss of
employment . . . and for this reason not likely to be false”), and that no
remedy is sought for him in this proceeding. At any rate, the substance
of his testimony was generally not disputed by the Respondent’s wit-
nesses. In the interests of creating a complete record, and due process,
I overruled the Respondent’s objection to the re-taking of Barreto’s
testimony. See Kentucky River Medical Center, 340 NLRB 536, 549
fn. 21 (2003) (witnesses recalled to repeat lost portions of their testi-
monies) and BI-LO, 303 NLRB 749, 753 fn. 7 (1991), enfd. 985 F.2d
123 (4th Cir. 1992) (same).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1166
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with its corporate headquar-
ters in McLean, Virginia, and an office and place of business in
San Juan, Puerto Rico, provides security guard services to the
United States Government at different posts and locations in
Puerto Rico. In conducting these operations during the 12
months preceding issuance of the complaint, the Respondent
purchased and received at its San Juan, Puerto Rico facility
goods valued in excess of $50,000 directly from points outside
the Commonwealth Puerto Rico. I find that the Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7).
The Respondent admits, and I find, that at all material times
the United Government Security Officers of America, Local 72,
(Local 72) and the United States Court Security Officers
(USCSO) were labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent, a Virginia corporation, provides security
personnel for Federal court facilities in Puerto Rico pursuant to
a contract with the United States Marshals Service (Marshals
Service or USMS). The duties performed by the Respondent’s
security officers include operating checkpoints, screening visi-
tors, assisting court personnel and visitors, transporting in-
mates, and monitoring cameras and other security equipment.
Before the Respondent terminated his employment in Febru-
ary 2007, Marcial Rodriguez had worked as a security officer at
Federal court facilities in Puerto Rico for approximately 10
years. In January 2005 he became the president of Local 72,
which was, at that time, the collective-bargaining representative
of the Respondent’s security officers in Puerto Rico.2 Prior to
2005, Rodriguez served as the organization’s vice president.
Local 72 and the Respondent were parties to a collective-
bargaining agreement that became effective on June 13, 2003.
The agreement provided that it would remain in effect until
September 30, 2006, and would continue in effect thereafter
unless either party gave notice of an intention to discontinue the
contract in advance of the September 30 date.3 In September
2006, the bargaining unit employees replaced Local 72 with a
new bargaining representative—the USCSO. After the change,

2 The job title for security officers in the bargaining unit is “court se-
curity officer” or “CSO.” The collective-bargaining agreement defines
the unit as:
All full-time and regular part-time court security officers assigned to
the federal courthouses or other judicial facilities within the jurisdic-
tional boundaries of the United States District Court for the District of
Puerto Ric-, employed by the Employer pursuant to its contract(s)
with the Federal Government (Government) for the provision of secu-
rity at said courthouses, but excluding all managers, supervisors, of-
fice and/or clerical employees temporarily assigned employees, substi-
tute employees, lead court security officers [LCSOs], and all other
non-court Security Officer employees of the Employer.
3 Rodriguez gave uncontradicted testimony that the collective-
bargaining agreement remained in effect subsequent to September 30,
2006.
Rodriguez continued to be active in union matters, serving on
the negotiating committee for a new collective-bargaining
agreement.
In late 2006 or early 2007, Rodriguez wrote a letter to the
Marshals Service in which he complained about the Respon-
dent’s management in Puerto Rico. The Respondent interro-
gated Rodriguez about the letter, and suspended and discharged
him because of it. The General Counsel alleges that Rodriguez’
involvement with the letter was protected concerted and union
activity, and that the Respondent acted unlawfully by interro-
gating and disciplining him. The Respondent contends that
Rodriguez’ involvement with the letter was not protected activ-
ity because the letter did not relate to an ongoing labor dispute
and contained allegations that were maliciously untrue. The
Respondent does not claim, and the record does not show, that
Rodriguez had any performance or discipline problems unre-
lated to the letter.
B. Disputes Between Local 72 and the Respondent
Because the Respondent’s defense hinges on the contention
that Rodriguez’ letter to the Marshals Service contained allega-
tions that did not relate to any ongoing labor dispute and were
maliciously untrue, it is necessary to survey the record evidence
that relates to the existence of ongoing labor disputes and the
allegations in the letter. The purpose of this is not to determine
whether the management misconduct Rodriguez referred to in
the Marshals Service letter actually occurred or was, in fact, a
violation of law or contract, but to provide a basis for determin-
ing whether or not Rodriguez’ allegations of misconduct were
related to an ongoing labor dispute and where maliciously false.
The record shows that the Respondent and its employees in
Puerto Rico had a variety of longstanding and habitual labor
disputes. One subject that gave rise to recurring controversy
was the Respondent’s handling of payroll and leave matters.
Security officers frequently complained to Rodriguez about this
subject. Rodriguez testified that the Respondent was denying
security officers their vacations without explanation. In addi-
tion, Rodriguez testified that he personally was denied leave to
which he was entitled under the Family and Medical Leave Act
(FMLA). Barreto, who preceded Rodriguez as the president of
Local 72 and later served as a union delegate, testified that the
Respondent did not post the security officers’ leave balances, or
report them in pay statements and that, as a result, the security
officers never knew how much accrued leave they had. Begin-
ning in 2004, Rodriguez repeatedly brought the Respondent’s
purported misconduct regarding payroll and leave to the atten-
tion of the Company’s site supervisor, Luis Comas.4 Barreto
also spoke to Comas about the necessity of providing the secu-
rity officers with quarterly reports of their accrued leave. Both
Barreto and Rodriguez testified that the Respondent was re-
quired, under the collective-bargaining agreement, to provide
employees with quarterly statements of their leave balances,

4 The collective-bargaining agreement provides that the first step in
the grievance process is an “informal” one of discussion between the
employee and the immediate supervisor. U. Exh. 1, art. VI, sec. 3(A).
M.V.M., INC. 1167
and the agreement confirms the existence of that obligation.5
Comas agreed that the Respondent was required to report em-
ployees’ leave balances, but testified that he “d[id]n’t know
what happened up there” in the Respondent’s offices regarding
Local 72’s requests for the missing information. According to
Comas, he referred Rodriguez’ complaints to the Respondent’s
office and “figured the problem would be handled at that
point.” However, Rodriguez testified that the problem was not
handled; rather than provide the information, the Respondent
offered various reasons for failing to do so—e.g., that the Com-
pany’s computers were down, or the corporate offices were
moving.
On May 9, 2006, Rodriguez, in his capacity as president of
Local 72, made a written information request to Comas for
employees’ rates of pay, changes in rates, hours worked weekly
since completing probation, and dates of completion of proba-
tion. The May 9 letter stated that the information had previ-
ously been requested on June 14, 2005, and on February 28,
2006, but had not been provided to Local 72. According to
Local 72’s vice president, Eduardo Soto, the May 9 letter was
sent because the Respondent was failing to comply with con-
tract provisions regarding the probationary period for new em-
ployees, and because security officers were complaining about
the way the Respondent was applying pay differentials. As
with all letters that Rodriguez or Soto sent on behalf of Local
72, this one was reviewed by both Rodriguez and Soto.6
In December 2006, the Respondent made unexpected deduc-
tions from the pay of security officers. A number of the secu-
rity officers complained to Barreto that money had been taken
from them without explanation. Barreto discussed this problem
with Rodriguez and Soto. Eventually, Barreto confronted Co-
mas about the deductions and Comas stated that an audit of the
Respondent’s payroll office determined that security officers
had been overpaid and that the Respondent was remedying the
mistake by deducting the past overpayments from security offi-
cers’ current pay. In a letter to the Respondent’s payroll office,
Soto sought further explanation of the deductions, but he did
not receive a response.
There were also controversies between the Respondent and
Local 72 over the firings of a number of security officers. The
facts regarding these discharges are not well developed, but the
record does reveal the following. In 2004 or 2005, Local 72
filed an unfair labor practices charge regarding the firing of
Juan Salgado, a bargaining unit employee. The Respondent
apparently took the position that Salgado was lawfully dis-
charged for distributing business cards on which he improperly
identified himself as a “U.S. Marshal.” Both Rodriguez and
Soto disputed this claim of wrongdoing, and Soto testified that
the business cards identified Salgado as a “Special Deputy Mar-
shal,” something that Soto said was an accurate designation
under regulations. During his testimony, Barreto identified a
number of other employees who used business cards, but were

5 The collective-bargaining agreement states: “The Company shall
provide to each Employee a statement of accrued vacation and sick
leave . . . each quarter.” U. Exh. 1, p. MVM 0168, art. XII, sec. 4.
6 Rodriguez also reviewed correspondence that Local 72 received at
a post office box.
not union delegates, and were not terminated. He did not de-
scribe how those individuals identified themselves on their
business cards.
At the time that Rodriguez’ letter was drafted and sent to the
Marshals Service, a charge was pending regarding the Respon-
dent’s 2006 termination of a union delegate named Jose
Padilla.7 Rodriguez discussed Padilla’s firing with Comas, and
Comas forwarded Rodriguez’ comments about the matter to the
Respondent’s headquarters. The Respondent apparently took
the position that Padilla was terminated for using a cell phone
at work. Barreto testified that other individuals, who were not
union officials, used their cell phones at work and were not
terminated. Barreto also testified that a hearing date regarding
Padilla’s case was approaching.
There was also testimony that a union officer named Marisol
Rosario was terminated in about late 2005. The testimony of
Barreto indicated that the circumstances leading to the termina-
tion had to do with Rosario’s claim that she had been sexually
harassed by Comas. According to Barreto, the matter went to
“court,” and the result was a settlement under which Rosario
“was granted some money and asked to quit.”
In 2006, Local 72 filed an unfair labor practice charge alleg-
ing that the Respondent had unlawfully refused to provide it
with information regarding disciplinary actions, payroll/leave
matters, health and welfare payments, seniority, and other sub-
jects.8 On July 27, 2006, Local 72 and the Respondent reached
an agreement to settle that charge. Before the charge was
closed, however, Local 72 complained to the Board that the
Respondent was failing to comply with settlement terms re-
garding the provision of certain information and the posting of
notice. Barreto testified, without contradiction, that the Re-
spondent had not provided the Union with the information
sought. On April 12, 2007, the Regional Director for Region
24 of the Board closed the case, stating that further proceedings
were not warranted because the Respondent had provided “a
point of contact to coordinate a date for the Union to review the
requested information and clarify any existing doubts regarding
data previously provided” and because there had “been substan-
tial compliance” with the notice posting requirement.

7 Rodriguez testified that an unfair labor practice charge was filed
regarding Padilla’s termination. Soto stated that Padilla’s termination
was the subject of a pending arbitration proceeding. The brief of coun-
sel for the General Counsel states that an unfair labor practices charge
regarding the discharge of Jose Padilla had been deferred to arbitration
and was pending at the time of the hearing.
8 The amended charge in that case, which Rodriguez signed on be-
half of Local 72, stated that the information the Respondent failed to
provide about bargaining unit employees included: number of hours
worked weekly; employment status; date of completion of probation;
time and attendance records; payroll records; weekly work schedules;
comp time payments; annual leave records; sick leave records, and
quarterly reports of sick, and annual leave balances; name, address,
duty station, date of hire, rate of pay of employees; name, address, date
of termination, and reasons for termination of all discharged employ-
ees; disciplinary information and reasons for discipline of employees
Jose Padilla and Alfredo Velez; seniority list for the years 2004 to
2006; and health and welfare payments made to employees from Janu-
ary 2005 forward. GC Exh. 8–B.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1168
In addition to disputing management’s actions in the ways
discussed above, Rodriguez delivered a letter to Dario
Marquez, the Respondent’s president and CEO, in which Local
72 accused Comas and the Respondent’s management in Puerto
Rico of improper activities. More specifically, the letter com-
plains that management had, inter alia, been: denying security
officers overtime pay and encouraging them to accept compen-
satory time instead; failing to give security officers a health and
welfare pay increase that was due; denying security officers rest
periods; denying security officers vacation time that was due;
failing to inform employees of their sick leave balances and
denying them sick leave; failing to update the employee senior-
ity list; violating the seniority clause of the collective-
bargaining agreement; giving newly hired personnel preference
regarding shift and duty locations;9 and retaliating against secu-
rity officers who asserted their rights. (U. Exh. 2.) The letter
was dated January 31, 2006, and was signed by Rodriguez,
Soto, and Padilla. The record does not reveal whether Local 72
received a response from Marquez, or anyone else affiliated
with the Respondent.
A final management action that Rodriguez disputed con-
cerned the automatic deduction of union dues from employee’s
paychecks after Local 72 ceased to represent the bargaining
unit. During the period when Local 72 was representing the
unit, a number of bargaining unit employees signed dues-
checkoff cards authorizing such deductions, as provided for by
the collective-bargaining agreement. (See U. Exh. 1, art. XVI,
sec. 5.) In September 2006, the bargaining unit employees
elected to replace Local 72 with another labor organization, the
USCSO. In a memorandum, dated January 23, 2007, from
Rodriguez to Comas, Rodriguez argued that the Respondent
could not rely on the Local 72 dues-checkoff cards to justify
deducting dues for the USCSO. The memorandum also asked
the Respondent to provide employees with copies of the collec-
tive-bargaining agreement that the Respondent was negotiating
with the USCSO so that employees could “vote intelligently to
accept or not to accept” it. Rodriguez gave this memorandum
to Comas.
At trial, Rodriguez stated that the Respondent was also vio-
lating the Marshals Service contract by failing to fill vacancies
and by hiring individuals who were not fluent in English. Re-
garding the duty to fill vacancies, the collective-bargaining
agreement states that the Respondent “is obligated under its
contract with the USMS to fill a designated number of shared
positions in order provide full staffing level coverage, increase
security levels as needed and avoid unnecessary overtime.” (U.
Exh. 1, art. V, sec. 2.)10 Rodriguez testified that the Respon-
dent, nevertheless, failed to fill vacancies and forced security
officers to work large amounts of overtime—sometimes con-
secutive double and triple shifts. Regarding the purported vio-
lation of an English proficiency rule, Rodriguez testified, with-
out contradiction, that such a rule was set forth in the Marshals

9 Previously, in a November 4, 2004 memorandum to Comas, Rodri-
guez had complained that the Respondent was violating the seniority
provision in the collective-bargaining agreement.
10 The Respondent’s contract with the Marshals Service was not pro-
duced at trial by any party.
Service contract and that the Respondent had hired a security
officer named Epifanio Fernandez who needed to use an inter-
preter when interviewing for the position. The testimony at
trial also established that the Marshals Service contract incor-
porated the terms of the collective-bargaining agreement in
whole, or in part,
C. Letter to Marshals Service
In December 2006 or January 2007, Rodriguez, frustrated
with the responses that employees had received when they
raised their concerns with the Respondent, drafted the letter to
the Marshals Service. In the letter, Rodriguez complains about
various actions by the Respondent’s management. The letter—
which I set forth without attempting to correct or individually
identify errors in grammar, style, and spelling—reads as fol-
lows:
Mr. Marcial Rodriguez
[Address]
U.S. Marshals Service
Judicial Security Contracts
[Address]
Attention contracting officer:
One of the major responsibilities of the United States Mar-
shals Service (USMS) is to ensure the safety of all Federal
Courts and Court employees against unauthorized, illegal and
potentially life threatening activities for more than a decade.
The USMS has sought the services of the private sector to
provide hightly qualified individuals are traditional known as
Court Security Officers (CSO) the description (above) is ex-
actly what M.V.M., Inc., obtained/found when they took over
the contract in Puerto Rico. As the years went by M.V.M.,
Inc. started to violate not only the contract with the USMS
MS-03-D-0001, but also the Court Security Officers Collec-
tive Bargaining Agreement whom proudly negotiated at the
bargaining table. The Court Security Officers in Puerto Rico
are hightly Skill, professional and take pride protecting the
Federal Enclave in Puerto Rico.
We have filed complaint after complaint with the United
States National Labor relations Board an agency of the United
States Government and yet M.V.M. Inc. keeps violating the
labor laws and our rights with impunity.
Federal Law give us the right to form, Join or assist a Union,
choose representation to bargain on our behalve, act together
with others employees lawfully for better benefits and protec-
tion. It appears that M.V.M., Inc. forgot that Puerto Rico is
part of the United States, protected by the constitution, Fed-
eral Law and Local Law. The contractor (MVM) through
their managers in Puerto Rico and Virginia have done exactly
that, an employee who dares complaint will be Harrass,
threaten with progressive discipline. The Union Officers rep-
resenting its members are constantly receiving threats of be-
ing fired.
We believe that the United States Marshall Service, Judiciary
Security Contract Division should investigate M.V.M. per-
M.V.M., INC. 1169
formance in Puerto Rico before allowing them to bid for fur-
ther contracts. They conducted self serving investigations and
did nothing to eliminate and correct the wrong doings of its
staff.
The Court Security Officers in Puerto Rico are protecting the
greatests institution in the United States and we are seeking
the same protection. “Is that to much to ask??”
Rodriguez signed the letter and gave it to Soto, who also
signed it. Either Rodriguez or Soto gave the letter to Barreto.
Barreto took the letter home with the understanding that he was
“supposed to mail it.” Rather than mail the letter immediately,
Barreto read it over a number of times and waited for approxi-
mately 1 week. At some point, Barreto “whited out” his name
and Soto’s name from the signature block, so that only Rodri-
guez’ name remained. After doing this, Barreto mailed the
letter to Manuel Varela,11 the Government official responsible
for overseeing the Marshals Service contract. Barreto testified
that he removed his and Soto’s names from the letter because
he feared retaliation by the Respondent in light of what he
characterized as the prior retaliation against Rodriguez, Padilla,
Rosario, and Salgado. According to Barreto, he left Rodriguez’
name on the letter to the Marshals Service because “somebody”
had to sign it and Rodriguez was Local 72’s president. Before
mailing the letter, Barreto did not warn Rodriguez that he was
removing the other names from the signature block.
The record does not establish the exact dates when Barreto
took possession of and mailed the letter, but it is clear that these
events happened sometime between December 2006 and Feb-
ruary 5, 2007. It is also not clear when Varela received the
letter, although it must have been no later than February 5,
because that was the date when Varela provided a copy to Co-
mas.
D. Respondent Prohibits Security Officers from Contacting
Marshals Service Directly About
Personnel Matters
In January 2007, Varela told Comas that security officers
were “running” to Marshals Service officials to discuss “corpo-
rate employee matters” and that “he wanted it stopped.” Comas
told James Dolan (the Respondent’s project manager) what
Varela had said. Dolan, in a January 23, 2007 letter addressed
to “all Court Security Officers,” stated as follows:
It has come to my attention that several employees
have been going to the employees of the United States
Marshal Service to intervene in MVM INC personnel mat-
ters. This is in direct violation of both MVM INC and
United States Marshal Service policy. As contract em-
ployees we are prohibited from engaging the Marshal Ser-
vice in MVM personnel matters. We remain employees of
MVM INC and any employee having an issue is to discuss
the issue with their immediate supervisor. If a resolution
cannot be achieved the employee should file a grievance.
I assure you that as your Project Manager I am your advo-
cate and will resolve any issues as defined by policy.

11 This individual’s last name is sometimes spelled “Barela” in the
record. He is also referred as the “COTR”—an acronym for “Contract-
ing Officer’s Technical Representative.”
In closing I would state that employees that violate this policy
will be subject to disciplinary action.
The record indicates that Rodriguez received a copy of this
letter on January 25. It is not clear whether Rodriguez received
Dolan’s letter before Rodriguez’ letter to the Marshals Service
was drafted and mailed.12
Neither Dolan’s letter, nor the Respondent’s brief, identify
the specific policy provisions that Dolan was claiming prohib-
ited security officers from contacting the Marshals Service
about personnel matters. At trial, the Respondent submitted a
copy of the Marshals Service performance standards for secu-
rity officers, and I have reviewed that document. It identifies
39 types of misconduct. Those performance standards do not
make any reference to employees contacting the Marshals Ser-
vice about personnel matters, or any other subject. There is one
provision which states that security officers should:
Not disclose any official information, except to the COTR,13
or other officials having a need to know, or make any news or
press releases. Press inquiries must be brought to the attention
of the COTR. This does not prohibit protected whistle blow-
ing activities or protected union activities.
(MVM Exh. 6, sec. C–13, par. (c)(13).) Another provision
directs security officers to “[r]frain from discussions concern-
ing duty assignment, particularly manpower, weapons, security
precautions, or procedures, except with those persons having a
need to know.” Id. at section C–13, paragraph (c)(14). The Re-
spondent also submitted a company document titled “Standards of
Conduct” that it distributed to security officers. That document
identifies 28 types of conduct that are “inappropriate.” It
makes no mention of a prohibition on employees contacting the
Marshals Service about personnel matters or any other subject.
The document does, however, state that it is inappropriate to
“Communicat[e] orders or information to any person not au-
thorized to receive them.” (MVM Exh. 4.)
E. Respondent Suspends and Interviews Rodriguez
As stated above, on February 5, Varela provided Comas with
a copy of the letter, signed by Rodriguez, that the Marshals
Service received. That same day, Dolan brought the letter to
the attention of Dina Evans, a human resources manager based
at the Respondent’s corporate offices in Virginia. It was not
apparent from the copy of the letter that was seen by Comas,
Dolan, and Evans, that the names of employees other than Rod-
riguez had initially appeared in the signature block. Evans ex-
amined Rodriguez’ letter and also Dolan’s January 23 letter
prohibiting security officers from contacting the Marshals Ser-
vice. Then, on February 6, Evans instructed Comas to suspend
Rodriguez.

12 The record does not establish whether it was after January 25,
when Rodriguez transmitted the letter to Soto and/or Barreto. More-
over, although the record evidence shows that Varela gave the letter to
Comas on February 5, it does not show how much earlier Varela re-
ceived the letter.
13 COTR is an acronym for the “contracting officer’s technical repre-
sentative.” In this case, the COTR was Varela.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1170
When Rodriguez appeared for work on February 6, Comas
informed him that he was suspended. Rodriguez asked Comas
to give him something in writing, and Comas produced a
memorandum that stated, “CSO Marcial Rodriguez, this is to
inform you that you are suspended indefinite pending an inves-
tigation and disposition to be determined at corporate office.”
Before Rodriguez left that day, he was required to surrender his
pistol, uniforms, and identification cards. As Rodriguez was
leaving the work location, Carlos Borges, a lead security offi-
cer, asked Rodriguez whether he had written the letter, and
Rodriguez said that he had. Borges asked, “[H]ow come?” and
Rodriguez responded that “MVM failed to comply.”
A memorandum, dated February 12, from Dolan to Rodri-
guez, stated that Rodriguez was suspended effective February
6. The memorandum stated that shortly after receiving Dolan’s
January 23 directive regarding contacts with the Marshals Ser-
vice Rodriguez had violated that directive and the Respondent’s
standards of conduct by sending a letter to the Marshals Ser-
vice. The February 12 suspension memorandum did not state
that there were any defamatory/slanderous statements in Rodri-
guez’ letter to the Marshals Service.
In a letter dated February 9, Soto, vice president of Local 72,
asked the Respondent to revoke “the suspension and termina-
tion action” against Rodriguez, and immediately reinstate him.
On February 14, Rodriguez and his attorney, Harold Hopkins,
met with officials of the Respondent regarding the suspension
and investigation. Evans was not physically present at the
meeting, but participated by telephone. At the outset of the
meeting, Evans barred Hopkins from further participation, stat-
ing that Rodriguez did not have the right to have counsel pre-
sent since the meeting was part of an internal investigation. At
that point, Rodriguez and Hopkins asked to reschedule the
meeting so that arrangements could be made to have a union
representative accompany Rodriguez. The meeting ended. In a
February 22 letter to Rodriguez, Evans stated that the Respon-
dent needed to interview Rodriguez as part of the investigation
into whether he had violated Marshals Service directives and
written instructions from Dolan by writing a letter to the Mar-
shals Service about personnel issues. Evans told Rodriguez
that if he did not report for the interview the Respondent would
“adjudicate the matter” without his “input.”
On February 27, Rodriguez met again with the Respondent’s
officials. This time Rodriguez was accompanied at the meeting
by Yolanda Alvarez, another security officer, rather than by
Attorney Hopkins, although Hopkins was waiting outside the
meeting room. Once again, Evans conducted the meeting by
telephone. Present in person for the Respondent were Comas,
an administrative assistant named Dorcas Parilla, and a quality
control manager named Edwin Burgos. Comas presented Rod-
riguez with a copy of the letter to the Marshals Service. Unlike
the version of the letter that had been entrusted to Barreto, the
one shown to Rodriguez on February 27, did not also include
the names of Soto and Barreto in the signature area. In addi-
tion, the print on the copy of the letter that was shown to Rod-
riguez on February 27, was somewhat smaller than on the origi-
nal—a result of a facsimile and/or reproduction process that
occurred after the letter left Rodriguez’ possession. (Compare
GC Exh. 4 and MVM Exh. 1.) The Respondent also presented
Rodriguez with a copy of Dolan’s January 23 letter prohibiting
direct communications with the Marshals Service. Evans asked
Rodriguez whether he had previously received the letter from
Dolan. Rodriguez responded that he did not recall. Evans
asked Comas whether he had given Rodriguez a copy of Do-
lan’s letter. Comas stated that he had done so on January 25,
but that Rodriguez had refused to sign an acknowledgement of
receipt. One of the Respondent’s officials asked Rodriguez
whether he had seen the letter to the Marshals Service. Rodri-
guez said that he did not recall and asked to talk to his attorney.
Evans denied Rodriguez’ request to consult his attorney. At
that point, Rodriguez refused to answer any further questions
and left the meeting. Rodriguez testified that he believed it was
important to consult his attorney because the letter he was be-
ing shown was “90 percent” the same format as—in other
words, not identical to—the one he was familiar with.
F. Respondent Terminates Rodriguez
The Respondent terminated Rodriguez’ employment effec-
tive February 27—the same day that Evans interviewed him.
Evans was the official who made the decision to terminate Rod-
riguez. She informed Rodriguez of his termination in a letter
dated March 1. Regarding the reasons for the termination,
Evan’s letter states:
This action is predicated on your continued violation of MVM
and USMS policies, procedures, rules, regulations or contract
requirements. By communicating directly with the USMS
you not only violated the USMS directive but also MVM’s
Standards of Conduct. Additionally on February 27, 2007
you refused to answer questions related to an internal investi-
gation conducted by the Human Resources Manager.
In the termination letter, Evans does not discuss the substance
of the allegations in the letter that Rodriguez drafted to the
Marshals Service, or claim that any of those allegations were
false. She asserts that Rodriguez has “continued” to violate
“MVM and USMS policies, procedures, rules, regulations or
contract requirements,” but does not specifically identify any
provision.
The change of employment status form completed by the Re-
spondent regarding Rodriguez’ termination states:
On February 27, 2007, CSO Marcial Rodriguez was present
during a phone interview with Ms. Evans in reference to an
internal investigation regarding his disparaging memo to the
USMS Contracting Officer. . . . Marcial Rodriguez refused to
answer questions related to the investigation. Mr. Rodriguez
knew communicating with the USMS directly was a violation
of USMS directive. This directive had been communicated to
him numerous times. Mr. Rodriguez terminated from em-
ployment on this date.
As with the termination letter, this form does not state that any
of the allegations in Rodriguez’ letter to the Marshals Service
were false.
At trial, Evans gave a different explanation for terminating
Rodriguez than the one set forth in the termination letter and
the termination form. She testified that Rodriguez was termi-
nated because the comments in the letter to the Marshals Ser-
M.V.M., INC. 1171
vice “were deemed to be defamatory, and not proven.” She
pointed to a number of statements in the letter that she said
were false. Evans stated that Rodriguez’ refusal to answer
questions during the meeting of February 27, was a “very small
factor” in his discharge and was mentioned in the termination
letter to make the point that the Respondent had offered him
opportunities to answer questions related to the investigation.
Evans testified that the evidence she considered in making her
decision included: the letter that Rodriguez wrote to the Mar-
shals Service; the January 23 letter from Dolan to security offi-
cers; a signed statement from Borges in which he reported that
Rodriguez had admitted to writing the letter to the Marshals
Service; and Comas’ and Parilla’s notes regarding the February
27 meeting. Evans also compared Rodriguez’ signature on
other documents with the signature on the letter to the Marshals
Service, and concluded that Rodriguez had signed the letter.
While Evans pointed to evidence that supported her conclu-
sion that Rodriguez had written the letter to the Marshals Ser-
vice, she did not identify any evidence to support her conclu-
sion that allegations in that letter were false. The record does
not show that, prior to terminating Rodriguez, Evans, or the
Respondent completed any investigation into the truth or falsity
of the allegations in the letter to the Marshals Service. When
asked by the Respondent’s counsel to testify about what was
false in the letter, Evans identified four subjects. First, she
noted that the letter stated that the Respondent violated the
Government contract with the Marshals Service. Regarding her
basis for concluding that this was false, she stated: “I believe
that was inaccurate.” Second, she testified that the letter falsely
alleged that the Respondent was violating the collective-
bargaining agreement. As to why she concluded that allegation
was false, Evans stated: “I had no information with regards to
our violating the collective-argaining agreement.” Third, she
cited language in the letter alleging that the Respondent was
violating labor laws, including the National Labor Relations
Act. To explain why she concluded that this was false, Evans
stated: “I have no information that would lead me to believe
that that information was true.” The fourth, and last, “false-
hood” that Evans says she found in the letter was the statement
that the Respondent’s managers were harassing and threatening
employees who made lawful complaints. Regarding her basis
for concluding this was false, Evans stated only: “I have no
information to support that allegation.”
While, as recounted above, Evans repeatedly testified that
she had no information showing that the statements she claimed
were falsehoods were true, her testimony indicates that she also
had no information showing that those statements were false.
Indeed, on cross-examination, Evans conceded that at the time
she decided to terminate Rodriguez she had no information
about violations of the Government contract, the collective-
bargaining agreement, labor law, or about company officials
harassing/terminating employees who complained. Although
Evans testified that she now knows there were one or more
union grievances pending when she terminated Rodriguez, she
admitted that she was unaware of those grievances at the time
she terminated Rodriguez. She stated that she was not involved
with handling employee grievances that had not progressed
beyond the informal step and the first written step. When Ev-
ans terminated Rodriguez, she also did not know that there
were two or more open unfair labor practices charges that had
been filed by employees in Puerto Rico against the Respondent.
She explained that “deal[ing] with” such charges was not part
of her job, but rather was handled by the Respondent’s general
counsel. She did not claim to have interviewed the Respon-
dent’s general counsel about pending unfair labor practices
charges before terminating Rodriguez.14 Evans also had no
knowledge of the allegations in Local 72’s January 31, 2006,
letter to the Respondent’s CEO, Marquez, or in Local 72’s May
9, 2006 letter to Comas complaining that prior information
requests had not been complied with. Similarly, Comas dis-
avowed knowledge of outstanding labor disputes, stating that
whenever he received anything “that has to do with labor re-
lated problems,” he forwarded them to Evans or the Respon-
dent’s legal staff without even opening them.
G. Disciplinary Procedures Under the Collective-
Bargaining Agreement
The section of the collective-bargaining agreement that deals
with disciplinary practices states that employees may be termi-
nated either by determination of the U.S. Government, or by the
Respondent. (U. Exh. 1, art. VII.) That section states that
“progressive discipline generally shall be applied,” but that
“offenses may occur for which progress [sic] discipline is not
applicable.” The three examples that the contract provides of
offenses for which progressive discipline is not applicable are
fraud, gross misconduct, and theft. All discipline is subject to
the grievance and arbitration procedures, except for discipline
issued by the U.S. Government pursuant to its rights under the
Marshals Service contract with the Respondent. The collective-
bargaining agreement also states that security officers are re-
quired to comply with the performance standards set forth in
the Marshals Service contract. The testimony indicated that
some, or all, of the employment terms set forth in the collec-
tive-bargaining agreement are incorporated by the Marshals
Service contract.
H. Complaint Allegations
The complaint alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminating against Marcial
Rodriguez because of his union and concerted activity: on
about February 6, 2007, when it suspended him; on about
March 1, 2007, when it discharged him; and since the discharge
by failing and refusing to reinstate him.15 The complaint also
alleges that the Respondent unlawfully interfered with employ-
ees in violation of Section 8(a)(1) on about February 27, 2007,
when it interrogated Rodriguez about his union and/or con-
certed activities.

14 In one, somewhat obscure, portion of her testimony, Evans did,
however, state, “It was my understanding from the people that I spoke
to that there was nothing outstanding.”
15 In the portion of its brief setting forth the violations it is seeking to
prove, the General Counsel does not include the claim that the Respon-
dent violated the Act by failing to reinstate Rodriguez. I conclude that
the General Counsel is pressing the allegations that Rodriguez was
unlawfully interrogated, suspended, and terminated, but has abandoned
the allegation that Rodriguez was unlawfully refused reinstatement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1172
Analysis and Discussion
I. WAS RODRIGUEZ’ CONDUCT PROTECTED?
The protection afforded to employees by the mutual aid and
protection clause of Section 7 of the Act extends to employee
efforts to improve their terms and conditions of employment, or
their “lot as employees,” through channels outside the immedi-
ate employee-employer relationship. Eastex v. NLRB, 437 U.S.
556, 565 (1978); Valley Hospital Medical Center, 351 NLRB
1250, 1252 (2007). The third parties to whom employees have
a protected right to raise concerns about terms and conditions
of employment include the employer’s clients. Handicabs,
Inc., 318 NLRB 890 (1995), enfd. 95 F.3d 681 (8th Cir. 1996),
cert. denied 521 U.S. 1118 (1997). Such communications are
protected even if they will negatively impact on the employer’s
business. Tradesman International, Inc., 332 NLRB 1158,
1160 (2000), enf. denied on other grounds 275 F.3d 1137 (D.C.
Cir. 2002); Sacramento Union, 291 NLRB 540, 546 (1988),
enfd. sub nom. Sierra Publishing Co., 889 F.2d (9th Cir. 1989)
. An employee’s “right to appeal to the public is not dependent
on the sensitivity of the [employer] to his choice of forum.”
Allied Aviation Service, 248 NLRB 229, 231 (1980), enfd.
mem. 636 F.2d 1210 (3d Cir. 1980).
In the instant case, Rodriguez’ letter seeks the assistance of
the Marshals Service to improve the Respondent’s treatment of
employees. According to Rodriguez’ letter, the Respondent
had been violating labor law, the terms of the collective-
bargaining agreement and the terms of the contract between the
Respondent and the Marshals Service. He references employ-
ees’ rights, under Federal law, to engage in union activity and
“act together . . . lawfully for better benefits and protections,”
and complains that the Respondent has been acting as if it “for-
got” that these rights apply to its employees. Rodriguez states
that the employees filed “complaint after complaint” but that
the Respondent continued to violate employee rights and retali-
ate against employees who complained. In the letter, Rodri-
guez requests “protection” and asks the Marshals Service to
assist the security officers by investigating the matter since the
Respondent had done “nothing to eliminate and correct the
wrong doings of its staff.” Rodriguez’ letter to the Marshals
Service letter clearly falls within the generally protected cate-
gory of employee communications that are made to a client of
the employer for the purpose of improving the “lot” of employ-
ees.
Not all employee complaints to third-parties, however, are
protected. Employee conduct that disparages an employer’s
product, rather than publicizes a labor dispute, is not protected.
NLRB v. Local 1229 (Jefferson Standard), 346 U.S. 464 (1953);
accord: Five Star Transportation, Inc., 349 NLRB 42, 48
(2007), enfd. 522 F.3d 46 (1st Cir. 2008). The Board is careful,
however, to “distinguish between disparagement of an em-
ployer’s product and the airing of what may be highly sensitive
issues.” Professional Porter & Window Cleaning Co., 263
NLRB 136, 139 (1983), affd. mem. 742 F.2d 1438 (2d Cir.
1983). The Respondent contends that Rodriguez’ letter falls
into the category of conduct that is unprotected because it dis-
parages the Company’s services and does not relate to an ongo-
ing labor dispute. This contention is contrary to the record
evidence. Rodriguez’ letter criticizes the Respondent’s treat-
ment of security officers, not the quality of the security services
the Respondent is providing, or the safety of the facilities it has
contracted to protect. The general allegations stated in the letter
are part of, and relate to, a number of longstanding labor dis-
putes between the Respondent and security officers.16 Those
labor disputes include controversies over the Respondent’s
alleged: failure to post leave balances and grant legitimate leave
requests; improper assignment of overtime shifts and attempt to
avoid overtime payments for such shifts; unauthorized deduc-
tion from security officers’ pay of purported overpayments and
union dues; failure to provide health and welfare pay increases
that were due; violation of the seniority provision in the collec-
tive-bargaining agreement; and improper discipline and dis-
charge of a number of security officers. The Respondent’s
employees created “labor disputes,” as defined by the Act,
when they brought these issues to the attention of company
officials, including the site supervisor (Comas) and the Com-
pany’s CEO (Marquez).17 In addition, Local 72 and/or security
officers created labor disputes by filing multiple unfair labor
practices charges against the Respondent. At least two of those
charges were open at the time of Rodriguez’ letter to the Mar-
shals Service. One was a charge regarding the Respondent’s
firing of Jose Padilla, a union delegate. The other was a charge
involving the Respondent’s response to Local 72’s information
requests. That charge sought information regarding the Re-
spondent’s handling of payroll, leave, overtime, a health and
welfare pay increase, seniority, and the discipline and discharge
of security officers—all of which were subjects of labor dis-
putes discussed above.
I do not believe that anything in Rodriguez’ letter, including
the sentence that alleges violations of the Marshals Service
contract, disparages the services provided by the Respondent.
In this connection, it is important to remember that the Mar-
shals Service contract has provisions that concern the terms and
conditions of security officers. It incorporates some, or all, of
the employment terms in the collective-bargaining agreement,
and also requires the Respondent to fill vacancies in order to
avoid assigning unnecessary overtime to security officers. The
Board evaluates the question of whether a written statement
relates to an ongoing labor dispute about terms and conditions

16 The letter to the Marshals Service does not repeat the specific al-
legations made by Local 72 or employees in those labor disputes, but
such repetition is not necessary. As the Board has stated, the “touch-
stone [is] not whether the communication constitute[s] a virtual carbon
copy of the specific arguments raised with the respondent, but [is],
rather, whether the communication was a part of and related to the
ongoing labor dispute.” Allied Aviation Service Co. of New Jersey, 248
NLRB 229, 231 (1980), enfd. mem. 636 F.2d 1210 (3d Cir. 1980)
(emphasis in original).
17 The Act defines “labor dispute” very broadly to include “any con-
troversy concerning terms, tenure, or conditions of employment.” Sec.
2(9) (emphasis added). Thus the labor disputes at issue here include
not only those controversies raised through formal grievances or
charges to the Board, but also those raised by the oral and written
statements made by Local 72 and individual employees to officials of
the Respondent. See Emarco, Inc., 284 NLRB 832, 833 (1987) (the
definition of “labor dispute” encompasses employees’ individual com-
plaints to employer).
M.V.M., INC. 1173
of employment by considering that communication in its en-
tirety and in context. Five Star Transportation, Inc., supra at
45. When considered in its entirety, and in the context of the
record as a whole, it is clear that Rodriguez’ letter is an attempt
to improve the lot of employees, not harm the Respondent.
Allegations of violations of the Marshals Service contract,
when read in context, are a criticism of the Respondent’s treat-
ment of security officers, not of the Respondent’s product. At
any rate, the Board recently noted that even if a communication
to third parties contains some criticism of the services provided
by the employer, that communication retains its protected status
if the criticism is “closely tied” to the employees’ working
conditions and the intention was to force the employer to take
heed of employees’ complaints about terms and conditions of
employment. Valley Hospital Medical Center, supra, slip op. at
4 and 3 fn.7. Any criticism of the Respondent’s services that
one might argue exists in the letter is closely tied to working
conditions and intended only to force the Respondent to take
complaints about employees’ terms of employment seriously.
Id.
The Respondent also raises the defense that Rodriguez’ con-
duct lost the protection of the Act because the letter to the Mar-
shals Service contained statements that were maliciously un-
true. In Valley Hospital Medical Center, the Board discussed
the standards that govern consideration of such a defense. The
Board stated:
Statements are also unprotected if they are maliciously
untrue, i.e., if they are made with knowledge of their fal-
sity or with reckless disregard for their truth or falsity.
. . . The mere fact that statements are false, misleading or
inaccurate is insufficient to demonstrate that they are ma-
liciously untrue. . . . Where an employee relays in good
faith what he or she has been told by another employee,
reasonably believing the report to be true, the fact that the
report may have been inaccurate does not remove the re-
layed remark from the protection of the Act. . . . In addi-
tion, in the context of an identified, emotional labor dis-
pute, the fact that an employee’s statements are hyperbolic
or reflect bias does not render such statements unpro-
tected.
Id., slip op. at 3–4 (internal citations to authority omitted); see
also El Mundo Broadcasting Corp., 108 NLRB 1270, 1278–
1279 (1954) (Board holds that inaccurate and defamatory
statements uttered in the course of otherwise protected activity
cause that activity to forfeit the protection of the Act only if the
remarks are “deliberately or maliciously false.”).
The Respondent bears the burden of proof on the question of
whether the employee’s statements are maliciously untrue.
Diamond Walnut Growers, 316 NLRB 36 (1995) (citing
Springfield Library & Museum, 238 NLRB 1673 (1979)), enfd.
in part, revd. in part 113 F.3d 1259 (D.C. Cir. 1997), cert. de-
nied 523 U.S. 1020 (1998); see also Milkovich v. Lorain Jour-
nal Co., 497 U.S. 1, 16 (1990) (in action for defamation, burden
of proof on issue of truth or falsity of statement is on the part
alleging falsity). On the record of the instant case, I conclude
that the Respondent has not even succeeded in showing that the
allegations in the letter to the Marshals Service were untrue,
much less carried its burden of proving that those allegations
were maliciously untrue. The only testimony that the Respon-
dent presented that went to the supposed falsity of those allega-
tions was that of Evans–the human resources manager who
made the decision to terminate Rodriguez. However, when
asked to explain why she concluded that the allegations made
to the Marshals Service were false, she answered that she had
no information on the subject or no information that the allega-
tions were true. She did not identify any evidence showing
those allegations to be false. Moreover, Evans did not claim
that she performed an investigation into the truth or falsity of
what was alleged in the letter. Indeed, she conceded that when
she reached her conclusion that those allegations were false she
had not even looked into the matter far enough to discover that
there were open unfair labor practices charges and grievances
filed by the security officers in Puerto Rico. Nor was she aware
of the January 2006 letter to Marquez in which Local 72 enu-
merated many of the specific violations that security officers
alleged were being committed by the Respondent’s operation in
Puerto Rico. This is not surprising since the record shows that
during the period leading up to Rodriguez’ discharge, Evans
was concerned with, and investigated, whether Rodriguez had
directly communicated with the Marshals Service, not whether
the allegations in the letter were true or false. The Respon-
dent’s subsequent focus in this litigation on the supposed false-
hoods in the letter to the Marshals Service is, the record sug-
gests, an after-the-fact rationalization contrived because the
relevant case law disallows the Respondent’s real reason for
discharging Rodriguez—i.e., that he had directly communicated
with the Marshals Service about the lot of security officers.
The Board has held that employees engaged in protected activ-
ity “do not lose the protection of the Act simply because their
activity contravenes any employer’s rules or policies.” Valley
Hospital Medical Center, above, slip op. at 5. “[A]n employer
may not interfere with an employee’s right to engage in Section
7 activity by requiring that the employee take all work-related
concerns through a specific internal process.” Id.
Assuming for purposes of argument that Rodriguez’ letter
contained false allegations, the Respondent has still failed to
meet its burden of showing that those statements were mali-
ciously false or made with reckless disregard for the truth. The
Respondent presented no evidence that Rodriguez had a mali-
cious intent. Rather, the evidence showed that Rodriguez’ pur-
pose was to pressure the Respondent to heed what he believed
were legitimate employee complaints that had been ignored or
brushed aside. I also conclude that Rodriguez did not make the
allegations in the letter with reckless disregard for their truth.
Reckless disregard for the truth of a statement is defined as a
“high degree of awareness of probable falsity.” St. Amant v.
Thompson, 390 U.S. 727, 731 (1968), quoting Garrison v. Lou-
isiana, 379 U.S. 64, 74 (1964); see also Bose Corp. v. Consum-
ers Union, 466 U.S. 485, 511 fn. 30 (1984) (The party asserting
actual malice is required “to demonstrate with clear and con-
vincing evidence that the [accused party] realized that his
statement was false or that he subjectively entertained serious
doubt as to the truth of his statement.”). Untrue employee
statements are protected whether or not the employees are rea-
sonable or correct in their good-faith belief that what they are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1174
saying is true. Titanium Metals Corp., 340 NLRB 766, 772
(2003), citing Fredericksburg Glass & Mirror, 323 NLRB 165
(1997).
On the record of this case, the Respondent has not shown
that Rodriguez had a high degree of awareness—or any aware-
ness–that allegations in the letter to the Marshals Service were
probably false. To the contrary, the evidence showed that Rod-
riguez and other officials of Local 72 had received reports from
security officers that the Respondent was denying them leave
and vacations, failing to post leave balances that were required
under the collective-bargaining agreement, and making unau-
thorized deductions from employee pay. It is not reckless for
an employee to rely on reports from other employees even if
that employee did not investigate the truth of the reports and
they turn out to be untrue. HCA/Portsmouth Regional Medical
Center, 316 NLRB 919 fn. 4 (1995); KBO, Inc., 315 NLRB
570, 571 fn. 6 (1994); see also Valley Hospital Medical Center,
351 NLRB No. 88, slip op. at 4 and 12. (“Where an employee
relays in good faith what he or she has been told by another
employee, reasonably believing the report to be true, the fact
that the report may have been inaccurate does not remove the
relayed remark from the protection of the Act.”) Moreover,
Rodriguez testified that he himself had been denied leave to
which he was entitled under the FMLA, a claim that was not
rebutted by the Respondent’s witnesses. Also unrebutted by
the Respondent’s witnesses was Rodriguez’ testimony that he
himself witnessed the Respondent violating the Marshals Ser-
vice contract by hiring security officers who were not fluent in
English and by failing to fill vacancies. Regarding Rodriguez’
allegation that the Respondent was violating the collective-
bargaining agreement by failing to provide employees with
leave balance statements, even Comas conceded that the Re-
spondent was required to provide the information and stated
that he did not know “what happened” to the security officers’
requests for such statements.
Rodriguez and/or Local 72 filed multiple unfair labor prac-
tices charges alleging that the Respondent had discharged union
officials for discriminatory or otherwise improper reasons, and
at least one of those charges was pending at the time of the
letter to the Marshals Service. The pending charge concerned
the Respondent’s discharge of a union official, purportedly for
using a cell phone while on duty. Moreover, there was testi-
mony that other security officers who were not union officials
had used their cell phones and not been discharged. Another
union official apparently lost her job with the Respondent after
she complained of sexual harassment. In a third case, a mem-
ber of the bargaining unit was terminated, purportedly for using
a business card that misrepresented his position with the Re-
spondent. There was unrebutted testimony, however, that the
business card had accurately identified the individual’s posi-
tion. The record evidence regarding these charges, while not
establishing whether the charges were true, supports the con-
clusion that Rodriguez’ allegation about retaliation was not
made recklessly or with a “high degree of awareness of prob-
able falsity.” St. Amant v. Thompson, supra; see also Delta
Health Center, Inc., 310 NLRB 26, 36 (1993), enfd. 5 F.3d
1494 (5th Cir. 1993) (even if an employee’s perceptions about
working conditions turns out to be incorrect, action based on
those perceptions is not removed from protection of the Act).
In addition, the record also shows that a charge signed by
Rodriguez in July 2006—and still open at the time of the Mar-
shals Service letter—sought information regarding the Respon-
dent’s handling of annual leave, sick leave, payroll, time and
attendance, seniority, health and welfare pay, discipline, and
terminations. That information is facially relevant to labor
disputes encompassed by the allegations in the letter to the
Marshals Service. Barreto testified, without contradiction, that
information the Respondent had agreed to provide to resolve
the charge had not been turned over as of the time of Rodri-
guez’ letter. The fact that Rodriguez and Local 72 were seek-
ing this information supports the view that Rodriguez was at-
tempting to gather information that would allow him to further
assess the accuracy of the employee complaints and other in-
formation he already possessed.
Moreover, it is reasonable under the circumstances here to
infer that when Rodriguez drafted the letter he was aware, at
least in general, background, terms not only of unit member
complaints that he personally received or acted on, but also of
the other information that Local 72 received during the years
when Rodriguez was a union official. The record shows that in
his capacity as the president of Local 72 Rodriguez consulted
with other union officials regarding employee complaints, let-
ters to the Respondent, and union matters in general. He also
reviewed documents, such as those relating to Board charges,
that were delivered to Local 72’s post office box. At any rate,
when Rodriguez drafted, and passed along, the Marshals Ser-
vice letter, it was his understanding that the letter was to come
not just from him, but from Union Officials Barreto and Soto as
well. Thus, information supporting the allegations that was
known to Barreto and Soto is relevant to the question of
whether the allegations in the letter were made with reckless
disregard for their truth or falsity.
What the Respondent primarily relies on to support its de-
fense that the letter included statements that were maliciously
or recklessly false is Rodriguez’ difficulty at trial recounting
specific evidence to support the general allegations. Although
Rodriguez’ testimony, and the record as a whole, demonstrates
his awareness of facts supporting the allegations in the letter to
the Marshals Service, it is also true that when the Respondent’s
counsel challenged Rodriguez to set forth his “proof” in detail,
Rodriguez had difficulty answering. The issue, however, is not
whether Rodriguez was capable—at a trial taking place over 10
months after he drafted the letter and almost that long since he
last worked for the Respondent—of stating from memory the
specific names, dates, contract provisions, and other details that
support the allegations in the letter. The question is whether,
on the record as a whole, the Respondent has met its burden of
showing that when Rodriguez drafted and signed the letter he
included falsehoods for malicious reasons or with a “high de-
gree of awareness of probable falsity.” As discussed above, the
evidence shows that Rodriguez through his personal experi-
ence, the reports he received from security officers, his consul-
tations with other Local 72 officials, and his layman’s ac-
quaintance with the contracts and labor law, had knowledge
supporting a good-faith belief in the truth of the allegations in
M.V.M., INC. 1175
the letter. The Respondent has failed to show not only falsity,
but also malice or reckless disregard. Rather, the record shows
that Rodriguez, and the other Local 72 officials whose names
he thought would appear on the letter, had substantial informa-
tion supporting the allegations set forth in that letter. Even if
that evidence was not sufficient to establish that the alleged
violations actually occurred, it certainly was sufficient to show
a good-faith basis for the allegations. For the reasons discussed
above, I conclude that Rodriguez engaged in protected con-
certed and union18 activity by drafting the letter to the Mar-
shal’s Service, signing that letter, and passing it on to Soto and
Barreto with the expectation that it would be mailed.
II. INTERROGATION
On February 27, 2007, the Respondent questioned Rodriguez
about the letter received by the Marshals Service. As discussed
above, Rodriguez’ involvement with that letter was activity
protected by the Act. The Board has held that it is unlawful to
coercively interrogate employees concerning such activity.
TNT Logistics North America, Inc., 347 NLRB 568, 576 (2006)
(citing TPA, Inc., 337 NLRB 282 (2001)), revd. regarding other
issue sub nom. Jolliff v. NLRB, 513 F.3d 600 (6th Cir. 2008).
In this case, the questioning was coercive. At the time he was
summoned for the questioning, Rodriguez was in a precarious
position since he had already been suspended and was awaiting
the Respondent’s decision about whether he would be permit-
ted to return to work. The purpose of the questioning was to
determine who was responsible for the letter so that appropriate
discipline could be imposed. Prior to the meeting, Rodriguez
was not allowed to review the version of the Marshals Service
letter that the Respondent presented to him during the question-
ing, and which was not identical to the version that Rodriguez
was familiar with. The meeting was conducted by Evans, a
high-level company official who was based at the Respondent’s
corporate offices in Virginia, not at the facility in Puerto Rico
where Rodriguez was employed. Although Rodriguez openly
signed the letter to the Marshals Service, the record does not
show that he intended, or expected, that the Marshals Service
would reveal his participation to the Respondent. At any rate,
his understanding was that he would be among a group of indi-
viduals who signed the letter, not that his name alone would
appear on it. The Respondent gave Rodriguez no assurances
that the purposes of the inquiry were benign or that his answers
would not result in adverse consequences for himself or others.
In light of the totality of the circumstances, I conclude that the
Respondent’s interrogation of Rodriguez was coercive. See
Millard Refrigerated Services, 345 NLRB 1143, 1146 (2005)
(totality of the circumstances are considered in determining
whether interrogation is coercive); see also Rossmore House,
269 NLRB 1176, 1177–1178 (1984), affd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985) (relevant factors include whether proper assurances
were given concerning the questioning, the background and
timing of the interrogation, the nature of the information

18 The Respondent has not contested the union and concerted charac-
ter of Rodriguez’ involvement with the letter, although, as discussed
above, it contends that his activity was not protected.
sought, the identity of the questioner, and the place and method
of the interrogation).
Any defense that the Respondent was simply investigating a
possible violation of Dolan’s prohibition on direct communica-
tions to the Marshals Service fails since that prohibition was
itself invalid. As discussed above, an employee’s communica-
tions to a third party “do not lose the protection of the Act sim-
ply because their activity contravenes an employer’s rules or
policies” and an employer “may not interfere with an em-
ployee’s right to engage in Section 7 activity by requiring that
the employee take all work-related concerns through a specific
internal process.” Valley Hospital Medical Center, supra, slip
op. at 5. An employer’s defense that it was investigating a
violation of one of its policies is without merit when that policy
was itself invalid. United Services Automobile Assn., 340
NLRB 784, 785 (2003), enfd. 387 F.3d 908 (D.C. Cir. 2004).
For the reasons discussed above, I conclude that the Respon-
dent coercively interrogated Rodriguez on February 27, 2007,
in violation of Section 8(a)(1).
III. SUSPENSION AND DISCHARGE
The Respondent states, and the record confirms, that the
company suspended and discharged Rodriguez because of his
involvement with the letter to the Marshals Service. That in-
volvement was protected concerted and union activity, and the
Respondent violated Section 8(a)(3) and (1) by suspending and
discharging Rodriguez because of it. See Saia Motor Freight
Line, 333 NLRB 784, 785 (2001). Even assuming that the
Respondent had a good-faith belief that the letter contained
statements that were unrelated to an ongoing labor dispute or
were maliciously untrue, and therefore unprotected by the Act,
the discharge was unlawful, since Rodriguez did not infact
make any statements that deprived his activity of the Act’s
protections. See Tri-County Mfg. & Assembly, Inc., 335 NLRB
210, 219 (2001), enfd. 76 Fed. Appx. 1 (6th Cir. 2003) (dis-
charge of employee unlawful even though employer believed in
good faith that employee made statements that deprived his
union activity of the Act’s protection where employee was, in
fact, innocent of making such statements); Bituma Corp., 314
NLRB 36, 36 fn. 3 (1994) (employer violated the Act by dis-
criminating against employee who employer believed in good
faith had maliciously, deliberately, or recklessly lied in the
course of protected activity, where employee did not engage in
such misconduct); Veeder-Root Co., 237 NLRB 1175, 1177
(1978) (“[I]t is immaterial to a determination that an employer
has unlawfully discharged an employee for giving currency to
inaccurate information in the course of concerted activity that
the employer acted a good-faith belief that the information was
deliberately or maliciously false if such were not the case.”).
As the U.S. Supreme Court has observed, “A protected activity
acquires a precarious status if innocent employees can be dis-
charged while engaging in it, even though the employer acts in
good faith.” NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964).
In its posthearing brief, the Respondent does not raise Rodri-
guez’ unwillingness to answer questions at the February 27
interrogation as a justification for his termination. As discussed
above, however, Evans mentioned that unwillingness in her
March 1 letter advising Rodriguez of the basis for the discharge
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1176
decision. At any rate, as discussed above, the Respondent’s
February 27 interrogation of Rodriguez itself violated Section
8(a)(1). The Board has held that a discharge is unlawful when
it is based on an employee’s failure to respond during an
unlawful interrogation. United Services Automobile Assn.,
above at 786, 794; Hertz Corp., 316 NLRB 672, 692 (1995).
Thus assuming that Rodriguez’ failure to answer questions on
February 27 played a part in the Respondent’s decision to dis-
charge him, that discharge is still unlawful.
The Respondent violated Section 8(a)(3) and (1) of the Act
when it suspended and then discharged Rodriguez for engaging
in protected concerted and union activity.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Government Security Officers of America, Local
72 (Local 72) and the United States Court Security Officers
(USCSO) are labor organizations within the meaning of Section
2(5).
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
4. The Respondent violated Section 8(a)(1) by coercively in-
terrogating Charging Party Marcial Rodriguez about his pro-
tected concerted and union activities.
5. The Respondent violated Section 8(a)(3) and (1) by sus-
pending and then discharging Charging Party Marcial Rodri-
guez because he engaged in protected concerted and union
activities.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I recommend that the
Respondent be required to offer Rodriguez reinstatement and
make him whole for any loss of earnings and other benefits he
suffered as a result of his unlawful suspension and discharge,
computed on a quarterly basis from the date when the Respon-
dent ceased to pay Rodriguez until the date of a proper offer of
reinstatement, less any net interim earnings, as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The Respondent, M.V.M., Inc., McLean, Virginia, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from

19
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Coercively interrogating any employee about protected
concerted and/or union activities.
(b) Suspending, discharging, or otherwise discriminating
against any employee for engaging in protected concerted
and/or union activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Marcial Rodriguez full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful suspension
and discharge, and within 3 days thereafter notify the employee
in writing that this has been done and that the discharge will not
be used against him in any way.
(c) Make Marcial Rodriguez whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of
the decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Puerto Rico, copies of the attached notice marked “Ap-
pendix.”20 Copies of the notice, on forms provided in both
English and Spanish languages by the Regional Director for
Region 24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained 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 pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice, in
both English and Spanish languages, to all current employees
and former employees employed by the Respondent in Puerto
Rico at any time since February 6, 2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

20
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.”
M.V.M., INC. 1177
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT suspend, discharge, or otherwise discriminate
against any of you for engaging in protected concerted and/or
union activity.
WE WILL NOT coercively question you about your protected
concerted and/or union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Marcial Rodriguez full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Marcial Rodriguez 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 this Order, remove
from our files any reference to the unlawful suspension and
discharge of Marcial Rodriguez, and WE WILL, within 3 days
thereafter, notify him that this has been done and that the sus-
pension and discharge will not be used against him in any way.
M.V.M., INC.