Security U.S.A.

National Labor Relations Board - Board Decisions

May 10, 1999

328 N.L.R.B. 374 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
Security U.S.A. and Dave Gutierrez and Javier
Echevarria. Cases 32–CA–14873 and 32—CA–
15016
May 10, 1999
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On April 29, 1997, Administrative Law Judge David
G. Heilbrun issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed a brief in opposition to the General
Counsel’s exceptions and the General Counsel filed a
reply brief.
On January 20, 1998, a three-member panel of the
Board remanded this proceeding to Deputy Chief
Administrative Law Judge William Schmidt for
designation of an administrative law judge for the limited
purpose of determining whether the Respondent’s failure
to transfer Charging Party Echevarria from the position
of security officer to the position of police officer
violated Section 8(a)(1) of the National Labor Relations
A

ct. On March 12, 1998, Administrative Law Judge Mary
Miller Cracraft issued the attached supplemental deci-
sion. The General Counsel filed limited exceptions and a
supporting brief. The Respondent filed a brief in opposi-
tion to the General Counsel’s limited exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the initial decision, the supplemental decision, and the
record in light of all of the exceptions and briefs and has
decide to affirm the judges’ rulings, findings,2 and con-
clusions and to adopt the recommended Order set forth in
the Supplemental Decision.3
We adopt, as noted above, Judge Heilbrun’s conclu-
sion that the Respondent did not violate Section 8(a)(1)
by terminating security officer Echevarria on September
7, 1995.4 This issue turns on employer motivation. The
test to be used is set forth in Wright Line.5 Under Wright
Line, the General Counsel is required to make a prima
facie showing sufficient to support the inference that
protected conduct was a motivating factor in the em-
ployer’s decision. Once this is established, the burden
shifts to the employer to demonstrate that the “same ac-
tion would have taken place even in the absence of the
protected conduct.”
1 The Respondent filed no exceptions to the finding that its failure to
transfer Echevarria violated Sec. 8(a)(1).
2 The General Counsel has excepted to some of the judges’ credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 The General Counsel moved to amend the complaint to allege that
the Respondent’s failure to offer Echevarria part-time work from mid-
May 1995 through the summer of 1995 violated Sec. 8(a)(1). The
motion is denied as untimely. The General Counsel did not raise this
issue until it filed its brief in support of exceptions to the original
judge’s decision.
4 All dates here are in 1995 unless otherwise stated.
5 251 NLRB 1083 (1989), enfd. 662 F.2d 899 (1st Cir 1982), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 393–403 (1983).
I. FACTS
To briefly place this issue in context, we note that se-
curity officer Echevarria had anticipated being promoted
to a law enforcement position. On April 25, 1995, as a
result of not receiving the promotion, Echevarria told one
of the Respondent’s supervisors, Captain Pope, that he
would not continue working as a security officer. When
Pope asked if this was an ultimatum, Echevarria an-
swered that he was giving a list of his priorities and that
he would choose working as a police officer at the Re-
spondent as his first priority. However, he stated that he
would choose working as a police officer at Evergreen
Valley College, his other part-time employment, over
working as a security officer for Respondent. Echevarria
added that he would work in security at the Respondent
if he had no other work and needed the money.
Echevarria ceased being scheduled for work on or about
April 25. As discussed more fully in Judge Heilbrun’s
decision, the Respondent did not attempt to schedule
Echevarria to work again until August. After Echevar-
ria’s appearance at the August 1 unemployment hearing
on the behalf of former employee Gutierrez, the Respon-
dent again began offering work assignments to Echevar-
ria. The Respondent also began keeping a log of these
offers. After Echevarria declined a number of Respon-
dent’s August offers of work and further announced his
intention to take off the entire month of September as
personal vacation, Respondent on September 7 dis-
charged Echevarria.
II. ANALYSIS
We assume arguendo that the General Counsel pre-
sented sufficient evidence to support an inference that a
reason for Echevarria’s discharge was his protected con-
certed activity (i.e., his participation in Gutierrez’ unem-
ployment hearing). However, we find that Respondent
met its burden of demonstrating that the termination
would have taken place even in the absence of such ac-
tivity. Thus, the Respondent established that it termi-
nated Echevarria because his unavailability for work in
August and September was causing difficulties for Re-
spondent. These difficulties included maintaining a full
complement for security coverage and incurring exces-
sive overtime costs.
Our dissenting colleague concludes that the Respon-
dent has not met its Wright Line burden. She concludes
that Respondent’s offers of work to Echevarria were part
of Respondent’s effort to establish a basis to rid itself of
Echevarria. We disagree. The Respondent had a need to
328 NLRB No. 49
SECURITY U.S.A. 375
fill a position, and it made offers to Echevarria to fill it.
Contrary to our colleague, we do not find that Respon-
dent’s offers were other than bona fide offers of work.
The Respondent had a legitimate interest in, and was
privileged to ascertain, whether Echevarria was truly
interested in continuing to work for Respondent.
As our dissenting colleague notes, Respondent’s offers
of work began shortly after Echevarria’s appearance at
former employee Gutierrez’ unemployment hearing. The
Respondent also began keeping a log of these offers.
However, this does not establish that the Respondent’s
work offers were part of any scheme to get rid of
Echevarria.
The Respondent offered Echevarria several security
officer assignments in August. Echevarria turned down
every assignment offered to him. We recognize that
most of these offers of assignments were on short notice.
However, as Personnel Specialist Smith explained to
Echevarria, the short notices were due to the fact that
security officers were being terminated or were resign-
ing, and thus Smith could not give more notice to
Echevarria. Further, Echevarria was unavailable for se-
curity assignments even when the offer of an assignment
was not on short notice.
The log shows that Smith called August 23 and offered
Echevarria employment for the day shift on August 28,
29, and 30. Echevarria turned down all of those assign-
ments. Also on August 23, Smith offered Echevarria
employment on the “grave” shift for September 3, 10,
and 17. The log shows that Echevarria was “unable to
work.” Smith testified that he did not recall that
Echevarria gave him any reason why he could not work
on those dates. Thus, not all of the offers that Echevarria
received were on short notice. The August 23 offer of
work for September 3 was given with 11 days’ notice
and the offers of August 23 for work on September 10
and 17 exceeded Echevarria’s request for 2 weeks’ no-
tice.
Echevarria admitted that during one of the phone con-
versations with Smith he asked whether the assignment
was as a security officer or a law enforcement officer.
Learning that it was as a security officer, Echevarria re-
plied that he was working at Evergreen. Thus, it was the
nature of the job being offered, not the length of advance
notice, that was of concern to Echevarria. Finally, when
Smith called Echevarria on September 1, with offers of
assignments for September 3, 4, and 5, Echevarria stated
that he was taking vacation during the entire month of
September.
The September vacation was the last straw for the Re-
spondent. Echevarria had turned down every assignment
offered for a month. These assignments had been for
various shifts and with various amounts of notice. The
Respondent had explained to him why some of these
offers were on short notice. Then, he abruptly told the
Respondent on September 1—after an offer of several
assignments had been made—that not only would he not
accept any of those assignments, but that he would not be
available for the entire month because he was taking va-
cation. At that juncture, the Respondent had every rea-
son to conclude that Echevarria was unlikely to accept
any security assignment. Ultimately, Judge Heilbrun
found credible Smith’s testimony that Respondent, at
times material, was having problems maintaining a full
complement of staff at Moffett Field. Judge Heilbrun
further found “understandable” and credible Project
Manager Copeland’s testimony that he decided to termi-
nate Echevarria because his unavailability for work was
contributing to Respondent’s difficulties in maintaining a
full complement for security coverage and in incurring
excessive overtime costs.6
Thus, we agree with Judge Heilbrun’s conclusion that
the Respondent did not violate Section 8(a)(1) by termi-
nating Echevarria. We find that Echevarria would have
been terminated even in the absence of his protected con-
certed activity because he refused to accept legitimate
security officer assignments.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of Administrative Law Judge Cracraft
as set forth in the supplemental decision and orders that
the Respondent, Security U.S.A., Mountain View, Cali-
fornia, its officers, agents, successors, and assigns, shall
take the action set forth in that Order.

MEMBER FOX, dissenting in part.
Contrary to the judge and my colleagues, I would find
that the Respondent’s termination of Javier Echevarria
violated Section 8(a)(1) of the Act, on the grounds that
the evidence shows that it was motivated by Echevarria’s
protected activity of assisting fellow employee Gutierrez
at the hearing in which Gutierrez, opposed by the Re-
spondent, sought unemployment compensation.
The judge implicitly credited testimony that the Re-
spondent’s agent, Richard Min said (in the judge’s para-
phrase) that “Echevarria’s role was like stabbing him in
the back, because it betrayed their agreement not to have
meddling in work-related affairs of others.” The judge
also found that it was only after Echevarria appeared at
the August 1 unemployment compensation hearing that

6 Judge Heilbrun also found that Copeland did not know of Echevar-
ria’s long, post-April absence until late summer 1995.
7 We recognize that Judge Cracraft concluded that the Respondent
had earlier unlawfully denied Echevarria’s request to be transferred
from the position of security officer to a position as law enforcement
officer. As noted, there are no exceptions to that conclusion. However,
the General Counsel does not argue that Echevarria’s refusals to take
security officer assignments were justified by reason of the antecedent
unlawful failure to transfer Echevarria to a position as law enforcement
officer.
We also note, as did Judge Cracraft, that the General Counsel, on
brief, abandoned the theory that Echevarria was constructively dis-
charged on April 25, 1995, due to the Respondent’s unlawful failure to
transfer him to a law enforcement position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
the Respondent began offering Echevarria work and
keeping a log of Echevarria’s responses. The log-
keeping was begun, the judge found, “because Echevar-
ria had just drawn attention to himself by leading off the
[unemployment compensation] proceeding on Gutierrez’
claim.” There is no evidence that the Respondent kept
similar logs of its offers to other employees.
Recorded in the log were a series of short notice offers of
work to Echevarria, which Echevarria declined. As Echevarria
explained, without contradiction, he needed 2 weeks’ advance
notice in order to schedule other part-time work, and had so
informed the Respondent. Contrary to the judge’s statement
that these “notification procedures” were “much the same as
those used over [Echevarria’s] first eight months as a part-time
employee,” the testimony of the Respondent’s own witness was
that assignment schedules were normally made out several
weeks in advance, and only last minute vacancies (such as
those occurring when employees called in sick) were filled on
short notice. Thus, Echevarria’s failure to accept assignments
during August, which was relied on for his termination, was a
product of the Respondent’s own actions in calling Echevarria
frequently with offers of employment on short notice. The
Respondent offered no business reasons why it would suddenly
start making such offers to him in August, after making no
offers to him in the immediately preceding months.
On the basis of the foregoing evidence, I would find that the
General Counsel established that the Respondent was deter-
mined to fire Echevarria in retaliation for his acting in concert
with fellow employees over employment disputes, and that it
employed the frequent offer of short-term jobs and careful log-
ging of his responses turning down the offers to accomplish
this. On the basis of the same evidence, I would find that the
Respondent failed to show that it would have terminated
Echevarria absent his protected activities.

Sharon Chabon, Esq., for the General Counsel.
Michael J. Reiser, Esq. (Rankin, Sproat & Pollack), of Oak-
land, California, for the Respondent.
William Sokol, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Charging Party
(or Parties).
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried in Oakland, California, on April 16 and 17, 1996.
The charges were filed by David K. Gutierrez and Javier
Echevarria on July 25, 1995, and October 3, 1995, respectively,
and a consolidated complaint was issued February 29, 1996.
The primary issues are whether Security U.S.A (the Respon-
dent), caused the constructive termination of an employee by
failing and refusing to transfer him to a preferred job position,
or, alternatively, later involuntarily terminated that same per-
son, in either event in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after considering briefs filed by the
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, with an office and
place of business at the Moffett Field - NASA Ames Research
Center, Mountain View, California, engages in providing secu-
rity and law enforcement services at this facility valued annu-
ally in excess of $50,000 directly to the United States Govern-
ment. On these admitted facts I find that the Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Further, I find that the Respon-
dent’s described operations exert a substantial impact on the
national defense. See Southfork Systems, 313 NLRB 274
(1993).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Summary
The Respondent assumed security responsibility at Moffett
Field in May 1994, and related law enforcement responsibility
in July 1994, under a Federal Service Contract Act award, as
the U. S. Navy phased out its prior functions at that facility.
The Respondent’s central office in Oakland, California, estab-
lished a senior company representative at the site to manage
operational, budget, and employment matters. Subordinate
administrators, security personnel, law enforcement officers,
and supportive persons were promptly hired as a full scope of
all contracted responsibilities was reached during the summer
of 1994. Eventually a total complement of about 100 personnel
became employed.
Uniformed security officers and differently uniformed law
enforcement officers were both subject to a security clearance
by the Defense Investigative Service, and their hire was also
conditioned on the results, when ultimately available, of a psy-
chological examination. Additionally both categories of per-
sonnel were subject to the Respondent’s own background in-
vestigation done in particular reference to former employers; an
investigation less detailed for security officers than for law
enforcement officers. Persons of the latter classification were
typically checked by face-to-face interview of references and
former employers. Another employment requirement for both
security officers and law enforcement officers was, and re-
mains, the completion of a Federal Arrest Authority (FAA)
course, as administered locally over several days by Kennedy
Space Center (KSC), Florida instructors of NASA. The neces-
sary carrying of firearms by such personnel while in the per-
formance of official duties made such course completion a
mandatory requirement.
The case, as consolidated, originates in a collaboration be-
tween the Charging Parties while preparing an incident report
that involved the confrontation and forceful subdual of a youth-
ful male citizen at the Moffett Field premises. This collabora-
tion is asserted to be a motivating reason why in April 1995 the
Respondent ultimately and unlawfully declined to convert the
employment of the Charging Party Echevarria from a security
officer to the preferred and higher paid position of law en-
forcement officer. While the conversion did not occur,
Echevarria remained in the part-time, on-call status into which
he had been originally hired during the summer of 1994. How-
ever he did not actively work on his job during the entire late
spring and summer 1995. The Respondent eventually then
terminated him in early September 1995 for becoming unac-
SECURITY U.S.A. 377
ceptably unavailable even for part-time, on-call work as a secu-
rity officer.
The General Counsel contends that by the Respondent not
advancing or “promoting” Echevarria to be a police officer, it
unlawfully caused his constructive discharge from the unde-
sired capacity of security officer. Further, the General Counsel
contends that the true motivating reason for Echevarria’s even-
tual formal involuntary termination was because he had repre-
sented Charging Party Gutierrez about a month earlier, when
the latter pressed a formal claim for unemployment compensa-
tion benefits. The consolidated complaint also alleges that by
an acknowledging verbalism of its agent in mid-1995, plus
unlawful interrogations of certain employees, the Respondent
committed independent violations of Section 8(a)(1) of the Act.
The Respondent denies the commission of any unfair labor
practices.1
B. Principal Issues
1. Alternative theory no. 1 (constructive discharge)
Did the Respondent decline to “promote” Echevarria from a
security officer position to a law enforcement (police) officer
position in April, and by such conduct unlawfully cause his
constructive discharge?
2. Alternative theory no. 2 (termination)
Did Respondent unlawfully terminate the employment of
Echevarria in September; the unlawfulness being, as also with
the earlier constructive discharge, because he had engaged in
protected concerted activities?
C. Persons Involved
Dave Gutierrez was employed by Respondent as a law en-
forcement officer in excess of 6 months, until his termination
by written notice dated March 14 having short retroactive ef-
fect. His subsequent unfair labor practice charge as Case 32–
CA–14873 relative to this termination was partially dismissed
as to the chief 8(a)(3) allegation, but two independent viola-
tions of Section 8(a)(1) were found by the Regional Office to
have merit and eventually incorporated into the consolidated
complaint.
Echevarria was hired by the Respondent in August 1994 with
a background that included some higher education, criminal
justice training, a specified police academy certificate, and
experience gained from various jobs as (1) a police officer at
Santa Clara County Transit Authority (SCCTA), City of San
Juan Bautista, and school districts, (2) a security guard at Eas-
tridge mall and elsewhere), (3) a security instructor/counselor
and director, and (4) a law office investigator.
Project Manager J. B. (Bob) Copeland is the Respondent’s
senior site representative. He commands five branches that
exist to fulfill the Respondent’s Moffett Field contract with
NASA. Copeland originally briefly headed one of these, the
Facility Security & Law Enforcement (FSLE) branch, as his
first Moffett Field assignment.
Richard C. Min has been the chief of police, or head of the
FSLE branch, since approximately May 1994. His prior ex-
perience in security and law enforcement work includes 10
years in property and security administration at Eastridge Mall,
and 14 years in the Santa Clara County Sheriff’s Office. Min
has been personally acquainted with Echevarria from the years

1 All dates and named months hereafter are in 1995, unless otherwise
indicated.
when each were employed at Eastridge, and from later continu-
ing encounters in security contexts at the shopping center.
The chain of command under Min has quasi-military charac-
teristics typical of a uniformed security and police organization.
Captains James L. Hildebrand, James Pope, and Robert A.
Grant are chiefs of investigation, operations and administration,
respectively. Pope supervises four lieutenants who serve as
shift “watch commanders” for round-the-clock security and
law enforcement coverage under the Respondent’s obligations
at Moffett Field.
These lieutenants are John Vargas, Sid Johnson, Richard
Elliott, and William Horn. All persons of the captain and lieu-
tenant rank are admitted supervisors of the Respondent within
the meaning of Section 2(11) of the Act, and for that reason its
agents within the meaning of Section 2(13).
For case purposes Vargas has unusual significance among
these persons. He is a former colleague of Echevarria at
SCCTA, where they were each officials of a professional or-
ganization for police. Prior to this time of approximately 1989–
1990 when both Vargas and Echevarria were with the same
employer, they had a further acquaintanceship from the years
Vargas was first at SCCTA and Echevarria at Eastridge. This
combination of public transit and a shopping mall provided
interaction between security personnel of the two organizations.
D. Evidence
1. Constructive discharge issue
Vargas had been hired as a lieutenant in April 1994. Soon
after this he relayed information to Min that Echevarria was
interested in working at the Respondent. Min seemed receptive
to this, and contemporaneously Echevarria telephoned him to
solicit work there. This led to a long personal discussion at an
outside loading dock of the site between Min and Echevarria
around early July 1994.
During this conversation Echevarria volunteered that a for-
mer supervisor at SCCTA, named Gene Simmons, might not
express a favorable reference toward him because of interven-
ing as president of the professional association there. Echevar-
ria testified that Min then said he did not want the applicant to
start, or participate in, a union at Moffett Field or bring any
“Cesar Chavez bull shit” to the facility. Moffett Field is within
the Santa Clara County boundaries. Min denied having any
recollection of making such statements. Echevarria testified
further that Min termed him overqualified for the part-time
security officer position, which was then the only one open.
However, Min assured Echevarria that he could likely advance
to the more professionally responsible law enforcement officer
position when one came up. Min denied making this promise.
Echevarria’s active employment began with a familiarizing 1
day “ride-along” around the Moffett Field premises. He then
immediately began the FAA course in early August 1994.
However, early in the span of it he was forced to miss at least
1-full day because of a personal emergency. At the end
Echevarria was denied a course completion certificate because
he had missed part of it. The consequence thereafter for when-
ever he was scheduled to work was to post him only to building
227. This was an internal location and the only security station
at Moffett Field where the officer need not be armed. Echevar-
ria finished out 1994 in this manner, and on a subject to be
revisited in the recitation of facts was commended in writing
for providing extra assistance to a private contractor’s official
also stationed at building 227 named Mark Warzyniak. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
letter of commendation was forwarded to Echevarria as a con-
gratulatory memorandum from Lt. Johnson dated December 15,
1994.
After settling into what became a continuing, 7-month long
post assignment to building 227, Echevarria’s manner of learn-
ing his scheduled days of work was usually twofold. It could
be arranged by telephone, either as a call made to him in notifi-
cation of when needed, or as information when he himself tele-
phoned in to inquire. Echevarria testified that a further way
was when he actually appeared at Respondent’s briefing room
to check the FSLE work schedule.
a. January 1995 incident
On January 24, 1995, apparently in the afternoon, Gutierrez
stopped a youth as he walked outbound from the facility’s main
gate. The confrontation escalated from anger to a physical
altercation, during which Gutierrez place a choke-hold on the
young man who was then thrown down and handcuffed. Elli-
ott, the incoming night–shift lieutenant, was given a verbal
description of events, and arrangements followed from this for
Gutierrez to prepare an incident report with assistance from
Echevarria. At 6a.m. the following morning Gutierrez pre-
sented his completed written report to Elliott. After reading it
Elliott spoke of problems, such as attempted legal justification
for “the stop and detention” and omission of specifics on the
subdual. Gutierrez nevertheless submitted it for higher review
as written.
Gutierrez testified that his incident report was done on a
standard police form. He termed the assistance received from
Echevarria as quite common, with an experienced officer being
able to contribute toward quality and professionalism of the
report. For Echevarria’s part he had mainly advised on a spe-
cific vehicle code section in California law applicable to pedes-
trians, plus that Gutierrez should accurately and in chronologi-
cal order insert the important facts in this undertaking.
b. Aftermath of January 1995 incident
Hildebrand testified that he began an internal affairs investi-
gation of the January 24 incident the following day. It was
initially prompted by an immediate telephone complaint from
the young male’s mother, which advanced that possible exces-
sive force or improper conduct was present in the acts of Gu-
tierrez. However verbal reports from other officers at the
scene, coupled with the reservations initially held by Elliott,
caused preparation of the incident report itself to become an
issue during this internal affairs investigation. Eventually on
March 9 Hildebrand produced a 35-page investigation report,
one that contained the conclusions causing the Respondent to
terminate Gutierrez from employment.
Such collateral issue about Gutierrez’ incident report itself
drew Echevarria into the internal affairs investigation. Part of
this investigation report is a summary of interviews with
Echevarria by Hildebrand on February 2 and 3, done personally
and by telephone, respectively. In the first of these, the manner
of locating certain penal and vehicle code sections for apparent
applicability to Gutierrez’ incident report was discussed.
Hildebrand recorded Echevarria saying that he would not con-
done or participate in any falsification of a police report. In the
later telephone interview Hildebrand questioned Echevarria
about an audio recording of the incident, a prospect along with
other circumstances about which Echevarria had no knowledge
until well subsequent to the episode. Hildebrand documented
his final belief as being that Echevarria’s explanation of events
flowing from the January 24 incident seemed “truthful and
credible.”
Echevarria recalled this phase of things as involving three
separate contacts with Hildebrand. In the early stages Echevar-
ria parried Hildebrand’s probing questions, and by his answers
tended to exonerate Gutierrez. Later Hildebrand intimated that
Echevarria knew Gutierrez had a recording of the incident, and
he should concede this if it was true or else it was going “to
affect” him. However in a final conversation with Hildebrand
after Gutierrez’ discharge, this captain congratulated Echevarria
on his integrity and conduct during the internal affairs investi-
gation after which the two of them socialized.
c. Other background evidence
Echevarria testified to a three-way conversation that ensued
in July 1994 when he and Min walked to Vargas’ desk after the
verbal hire as a part-time security officer with promised later
advancement. According to Echevarria, Min delegated hiring
details to Vargas for follow through, and then said to both of
them that he had solicited an assurance from Echevarria that he
would not start a union at this workplace.
Vargas testified to certain discussion between himself and
Min about the time Echevarria was being hired in July 1994. In
the first of these, Min stated he would hire Echevarria as a part-
time security officer and move him up to law enforcement offi-
cer with the next opening. However, Min also mentioned at the
time to Vargas that Echevarria would not be able to do “any of
this union stuff out there.” Min was not questioned directly
about any of this testimony from Vargas.
During the final few months of 1994 Echevarria spoke fre-
quently to Min, Pope, Vargas, other lieutenants, and police
officers about stagnating in the security officer position. He
was especially aggravated because of a belief that another per-
son had been hired after him as a security officer, but with time
to take and complete the FAA course in August 1994. This
individual was believed to have been then promoted to a law
enforcement officer, thus filling a job anticipated by Echevar-
ria. His dilemma was also compounded by uncertainty and
delays in the scheduling of another FAA course as the new year
of 1995 approached.
In continuing persistence as seeker to become a police offi-
cer with the Respondent, Echevarria testified to conversing
again on January 6 with Min. This led to Min’s assurance that
Grant would see to ordering of the distinctively dark blue uni-
forms worn by law enforcement personnel. Echevarria, cor-
roborated by Gutierrez, also testified that this assurance led to
,an episode with both present, where Grant instructed Personnel
Specialist Darin Smith to initiate an anticipatory order. Both
witnesses also recalled Smith querying whether this should be
only for the shirt or the entire uniform as ostensibly meant by
Grant fulfilling Min’s directive. On a separate occasion shortly
after this, Gutierrez overheard Grant’s end of a telephone con-
versation in which this lieutenant inquired if Echevarria’s uni-
form had arrived. Min, Grant and Smith all deny that any steps
toward obtaining “dark blues” for Echevarria had been either
discussed or attempted.
In a side development during Hildebrand’s 6-week long in-
ternal affairs investigation of Gutierrez, it became known that
the Respondent intended to hire for a position titled “investiga-
tor.” Echevarria testified that Hildebrand offered to recom-
mend him for this position, and he was later told by Pope of his
selection. However filling of the position was abruptly can-
celed in February, leading Echevarria to inquire of Min about
SECURITY U.S.A. 379
what was happening. Min’s response was assertedly that
Echevarria had “pissed some people off at Moffett Field police
department.” Min had no recollection of making such a state-
ment.
Echevarria’s continuing assignment to building 227 in early
1995 resulted in one notable incident. As known from sketch-
ily presented facts, Echevarria had angered Warzyniak in late
March, in consequence of which Warzyniak prohibited
Echevarria, as he had the power to do, from continuing to work
at that location. Now down to no locations where an unarmed
Echevarria could be legitimately assigned, he was for several
weeks, as Min termed it, hidden in “the back 40” until a resolu-
tion could be reached.
d. April 1995 developments and aftermath
That resolution was soon presented when the next, long-
awaited FAA course was scheduled for April. Echevarria took
the course (or only the portion he had missed in August 1994)
as given on or about April 15, and passed the FAA course test.
In the process of doing so he learned that three newly hired law
enforcement officers were among the test-takers, one of them a
part-time person. When next soon scheduled to work after
passing the FAA course, Echevarria appeared and initially
asked Vargas about a police uniform. Vargas inquired about
this of Pope, and relayed Pope’s answer to Echevarria that he
was still to work as a security officer although now an armed
one. He did so on April 24 as his next to the last day of active
employment ever with the Respondent.
The following day Echevarria’s assignment was made at the
firing range for weapon qualification. After doing so, and
while still in an upset mood from Respondent’s ongoing failure
and refusal to convert him to a police officer, Echevarria testi-
fied to speaking successively with Pope (via Vargas) and Min
about the situation. Pope’s response was unchanged from the
day before, while Echevarria recalled that during discussion
with Min, the chief explained how his role in assisting Gutier-
rez affected the job situation. Min’s claimed elaboration about
this was that it “angered the administration at Moffett,” and “it
was going to be a while before [he] got the law enforcement
position.” Min was not questioned about any such conversation
on April 25.
After this brief and unsatisfactory session with Min,
Echevarria again angrily sought out Pope to protest the Re-
spondent’s apparent retaliation against him, and to tell Pope
that he would not continue working as a security guard because
his original job intention was to be a Moffett Field police offi-
cer. Pope asked if this was an ultimatum, which Echevarria
answered by saying that he was giving his “list of my priori-
ties” as among “the other part-time employments that I have.”
Echevarria then referred to Evergreen Valley College (EVC) in
San Jose, his continuous part-time employer since August 1,
1994. He told Pope that if EVC offered to make him as a full-
time police officer, he would take that over any disappointing
continuation as a security officer with the Respondent.
Echevarria said he would choose working as a police officer at
EVC over a security officer for the Respondent even though
both jobs paid the same. Echevarria added that he would be
reconciled to keep working merely in security at Moffett Field
only if no other work was available and he needed the money.
Pope assertedly simply replied “okay” to all this. Pope’s own
version of the conversation was of remarks by Echevarria
“something in the effect” of not wanting to remain as a security
officer, and if he could not become a police officer for Respon-
dent he “probably wouldn’t continue there.”
Echevarria testified that immediately after this point in time
he got permission from the Respondent to attend the Gavilan
College (Gilroy, California) program in instructional develop-
ment, and the Gavilan College program in background Investi-
gation. He recalled initially asking the Respondent to pay the
cost of this training, plus any missed wages while taking the
course. The Respondent declined both requests. Echevarria
termed his situation for the period around the end of April into
mid-May as that he “had to pay for the course myself and take
time off in order to attend these courses.” Echevarria was
awarded certificates of course completion from Gavilan Col-
lege on May 5 and May 11, respectively. His summarizing
testimony about this approximately 2 week–span was, “I got
approved for the time off.”
Following this he resumed an interest in active part-time
work by telephoning and personal visits to Moffett Field. His
usual contact there was a watch commander or scheduler
Smith. Echevarria soon realized that the entry “TBD” was
regularly appearing after his name on the schedules, and upon
inquiry to Elliott was told this meant “to be determined.” He
testified to making a specifically remembered call to Smith in
June, and being told to be patient about when an assignment
would materialize. The summer unfolded, however, without
any further work assignment from the Respondent.
Echevarria also testified to a conversation with Min in July,
arising because of his request to borrow a radar gun for profi-
ciency practice during his police job at EVC. Min declined the
request, and Echevarria followed up with a typical question
about whether a law enforcement officer position was material-
izing at Respondent. Min said there were no such vacancies,
but he also inquired why Echevarria had not been to work.
That question “completely floored” Echevarria, because in his
view this was the case because the Respondent had not called
him to work for over 2 months by then.
e. Contentions
The General Counsel contends that Echevarria engaged in
activity that was both protected and concerted when he aided
Gutierrez in preparing the January 24 incident report. The basis
of this contention is that Gutierrez was, from the outset, vulner-
able to corrective or punitive action by his employer because of
his own actions during the incident, and his report concerning it
would also, therefore, affect his own terms and conditions of
employment. From this, coupled with evidence of Min’s origi-
nal admonition to Echevarria and the Respondent’s stern ap-
praisal of Gutierrez sufficient to cause it to discharge him, the
General Counsel argues that the Respondent never forgave
Echevarria for helping Gutierrez and continued punishing him
as well. This basic contention addressing alternative theory no.
1 concedes that while Echevarria might have verbally quit from
a willingness to accept security officer assignments after April
25, this was truly a reflection of his mounting frustration over
promotional promises broken and unlawful verbalisms spoken
directly against his lawful conduct and persistent pressing for
occupational advancement to highly prized police work. On
this reasoning the General Counsel contends that the Respon-
dent could reasonably foresee that Echevarria would quit in
frustration, but reality of the situation is its own creation of his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
constructive discharge from the part-time security officer posi-
tion.2
The Respondent contends first that Echevarria’s limited role
in preparation of the Gutierrez incident report was akin to a
daily work routine and not, as a matter of law, protected con-
certed activity under the Act. Further, the Respondent argues
that by function, organizational structure and necessary qualifi-
cations, a security officer is not potentially promotable to police
officer, in addition to the fact that Echevarria had never for-
mally applied in writing for the position of law enforcement
officer. Here Respondent points out that his original job appli-
cation was to the non-existent title of “federal police officer.”
The Respondent also contends that had any concealed motiva-
tion to ease Echevarria out of its work force existed, ample
opportunity had long been present from his inability to be
armed while on duty and circumstances of the Warznyiak com-
plaint. Finally, the Respondent points to the fact that Echevar-
ria had formally never resigned from his position as security
officer, thus negating any basis from which to find a construc-
tive discharge from employment.
f. Credibility
I have little assurance that Gutierrez was a reliable witness
from observation of him. He was peculiarly careless about the
chronology of his own unemployment compensation proceed-
ings. He also presented with rigid and seemingly programmed
assertions, such that I discredit his only significant testimony to
the effect that the Respondent had set in motion the ordering of
a police uniform for Echevarria.
Vargas was plainly aligned in friendship with Echevarria, in
ways that outweighed his supervisory status with the Respon-
dent. I believe he attempted to be truthful, but that in given
instances he simply supported Echevarria as a personal choice
between competing interests. I only specifically discredit Var-
gas where he, too, testified that Min, Grant, and Smith were
singly and collectively intending to have police “dark blues”
waiting for Echevarria’s use.
Echevarria is, of course, the central and key witness in the
proceeding. I have definite reservations about major portions
of his testimony. On pure demeanor grounds he was exces-
sively effusive, and too often appeared to grope for convenient
responses. His version of why and how a police job was so
obsessively desired did little to create much confidence in
Echevarria’s ability to avoid faulty thinking. For example, he
claimed the person eventually identified as David Moranz had
usurped the law enforcement job otherwise hopefully available
(his “window of opportunity”) to him in 1994. Yet for the en-
tire balance of that year it is known, and he surely did know,
that by not successfully passing the August 1994 FAA course
he could not be armed at Moffett Field and thus not a police
officer there. This creates much doubt about his grasp of basic
reality, as when he incessantly hounded many people among
whom he worked (“almost everybody in the department . . . a
lot of people”) about the subject. Echevarria also cast his belief
in assuredly soon achieving a law enforcement position in
terms of promises that he “not to worry”, a testimonial phrase
shown like an incantation nine times in the transcript. It is also
troubling that Echevarria limited a response about speaking to

2 The General Counsel’s unopposed posttrial motion to amend the
dates of the Respondent’s alleged (1) refusal to transfer Echevarria to a
police officer position, and (2) subsequent termination of his employ-
ment as a security officer to April 10 and 25, respectively, is granted.
management on April 25 to Pope alone, but after an off the
record recess when his attention was again called to that point
he suddenly added Min as a person spoken with and even at-
tributed a remark to him that tended to show retaliatory motive.
This larding of testimony with perceptions, characterizations,
faintly-concealed obsessiveness, and occasional seeming con-
venience in replying to a question causes me to doubt the full-
ness of his veracity. I do, however, credit particular portions of
Echevarria’s testimony, most prominently as to damaging re-
marks uttered by Min other than on April 25 itself.
As to the Respondent’s witnesses, most are dealt with as spe-
cific credibility evaluations in my discussion that follows. I
make comment here only as to Min, Grant, and Smith. Min
was the least impressive witness of the case, a person whose
demeanor while testifying seemed more dreamlike or theatrical
than having a serious intent at recalling the truth. His several
denials of uttering cautionary or threatening remarks toward
Echevarria about activism were totally unconvincing. I dis-
credit Min in large part, and except only where noted other-
wise. Conversely, Grant displayed a sincere-seeming and ear-
nest demeanor that persuades me to credit him as to the impor-
tant collateral question of whether Respondent anticipatorily
ordered a police uniform for Echevarria. This same sense of
witness truthfulness applies to Smith, who also credibly denied
any knowledge of a police uniform requisition being authorized
for Echevarria. However, I believe Smith was less than candid
in claiming to have attempted telephone contact to Echevarria
for work assignments during the early summer months of 1995.
This shall be treated in more detail during separate discussion
of Echevarria’s final termination, whichthe General Counsel
has labeled alternative theory no. 2.
g. Discussion
I am first satisfied that Echevarria’s assistance in preparation
of Gutierrez’ incident report during the early morning hours of
January 25 was protected concerted conduct under the Act. It
is known that Elliott, the incoming night watch commander for
evening January 24 into morning January 25, was both alarmed
and skeptical as to Gutierrez’ actions in the altercation. As
later described in a memorandum dated February 9 to
Hildebrand, Elliott intimated that his first verbal advice from
Gutierrez himself displayed intolerant stereotyping of the per-
son confronted and overagressiveness in his physically forceful
response. During the 4 hours overtime that Elliott assigned to
Gutierrez, continuing him from his afternoon shift into 6 a.m.
on January 25, the incident report was created with assistance
from Echevarria.
As then turned in to Elliott at 6 a.m., it appeared to this lieu-
tenant that a strained description of the incident had emerged,
complete with supposedly mitigating references to California
statutes, including (1) Penal Code section 69 concerning ob-
struction or resistance toward “executive” (including police)
officers in performance of their duties, (2) Vehicle Code sec-
tion 3300 as to a pedestrian’s obligations of care when walking
along a roadway, and (3) Government Code section 21956
titled “Public Safety Officers Procedural Bill of Rights.” Gu-
tierrez had already had his probation extended twice because of
overly aggressive conduct while at work, and Elliott’s abiding
sense of things was that Gutierrez was willing to slant his report
as submitted after several hours spent with Echevarria com-
posing it. I do not, therefore, consider their joint effort to be a
routine matter, but instead that it could be (and was) influential
in whether Gutierrez might face disciplinary action. This
SECURITY U.S.A. 381
circumstance persuades me that the Act’s requirement of pro-
tected concerted activities relating to terms and conditions of
employment, either actual or potential, has been met. See
Mediplex of Wethersfield, 320 NLRB 510, 512–513 (1995);
Cleanpower, Inc., 316 NLRB 496, 497–498 (1995).
The Board’s basic case authority for constructive discharge
issues is Crystal Princeton Refining Co., 222 NLRB 1068
(1976). In that case two elements are defined as what must be
proven relative to such an issue. These are:
First, the burdens imposed on the employee must cause, and
be intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of the
employee’s union activities. Id. at 1069.
These elements continue to be the test, as exemplified in
Lively Electric, Inc., 316 NLRB 471 (1995), where the “so
difficult or unpleasant” factor was re-emphasized, and that a
forced resignation had occurred because of an employee’s “un-
ion or other protected activities.” (Emphasis added.)
The Board requires analysis of employer motivation in dis-
charge cases under its doctrine in Wright Line3 This require-
ment includes constructive discharge, although the Wright Line
doctrine applies there only to the second Crystal Princeton ele-
ment. Davis Electric Wallingford Corp., 318 NLRB 375
(1995). Wright Line calls for the General Counsel to generate a
prima facie case sufficient to support inferring that an em-
ployee’s protected conduct was a motivating factor toward the
discharge. Should this showing be made the burden of proof
shifts to an employer to demonstrate that the same adverse
action would have taken place even absent the protected con-
duct involved.
This case presents an unusual situation in that Echevarria did
not resign from, quit or abandon his security officer position
during April in any realistic sense. Neither did Respondent
prohibit him from so working, remove him as a counted part-
time employee, or announce that he was through at Moffett
Field. Instead a limbo-like status resulted from the Echevarria-
Pope conversation on April 25, with the supervisory captain of
operations uncertain of the employee’s intentions, and Echevar-
ria openly voicing a mixed message of not planning to continue
on assignment as a security officer, but hedging this with the
qualification that he might do so if personal financial pressures
forced it.
The very allegation of the Respondent having caused a con-
structive discharge is actually undercut by Echevarria’s desire
to undertake, as he did to completion, the Gavilan College
courses of early May. However he had become a seasoned and
regular part-time security officer by spring 1995, so regardless
of how perplexing his remarks to Pope might have been, I be-
lieve the onus of testing Echevarria’s intentions fell on Respon-
dent. Some specific duty assignment should have been offered
him before the end of May to clarify the situation. Smith back-
slid from his unassured testimony of having made scheduling-
type telephone calls to Echevarria before the end of May, and I
find that it was not done. I do note the parties’ stipulation that
Vargas telephoned by Echevarria on “several instances . . .
from May through August” to report about any scheduled work.
However Vargas was not the scheduler for part-timers, and
there is no certainty that he communicated meaningfully with

3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
Smith about Echevarria’s employment status around the time
such calls began. Therefore the interruption to Echevarria’s
utilization 2or 3 days in most weeks for a continuous 8-month
period was more at the Respondent’s behest rather than the
employee.
The element of “difficult or unpleasant” conditions being
imposed on a person is simply not present in this branch of the
consolidated case. What I see instead is that Echevarria had
elevated his expectations to a level that fueled an overblown
dismay about not being changed to a police officer position. I
discount several superficialities that have been erected about
the situation by all parties. The first of these is the Respon-
dent’s contention that Echevarria did not title his application,
nor any written reapplication, properly. The phrase “federal
police officer” that was on his original job application in 1994
is notice enough of what Echevarria sought, and coupled with a
nagging drumfire of dissatisfaction leftthe Respondent amply
informed about his occupational aspirations. Raising this tech-
nicality does not serve the Respondent well, when it is noted
how its own application for employment form asks those sub-
mitting one to confirm their capabilities for duties of an “at-
tached” job description. Echevarria’s employment application
in evidence here has no such attachment, and although it was
admitted as one of the General Counsel’s exhibits the Respon-
dent thereafter made no effort to supply the missing item. Sec-
ondly, Respondent’s claim that Echevarria was not even quali-
fied for police work is unconvincing. By experience, training
and police academy completion he was adequately grounded
for such an occupation by normal standards. Related to this is
Copeland’s testimony that his psychological evaluation was
disqualifying. I reject this unsupported claim, considering it an
afterthought injected only for purposes of this litigation and not
worthy of evidentiary weight.
For the General Counsel’s part I find no significance from
Echevarria being denied FAA completion after missing only
one portion of the course4 The course was entirely managed by
NASA personnel from KSC, and I do not accept the implication
that Respondent should have somehow wrung an exception for
Echevarria from these independent authorities. I disregard this
feature of the case, even though it is shown that on a localized
matter of contractual liberality the employer was once able to
obtain a special waiver from NASA. This excused formal po-
lice academy graduation for Johnson, based on his 30 years in
military security being considered the equivalent. Secondly,
the General Counsel raised the implication of the Respondent’s
notable satisfaction with Echevarria’s work as of December
1994, but did so with a vagueness that failed to connect with
issues at hand. This was the commendation in terms of his
relationship with independent contractor Warzyniak at building
227 where they each worked. The letter of commendation re-
ferred to gratitude for Echevarria’s “extra effort . . . and other
assistance” provided at that post, however this was a written
expression of the otherwise unidentified Tim Gafney and not
Warzyniak himself.
There was a special context to Echevarria’s original hire that
illuminated some events throughout this entire consolidated
case. Foremost in this context is the Echevarria-Vargas rela-
tionship. It was expressly termed one of friends, and they had
4 The FAA course overall was 88 hours of instruction, presumably
meaning 11 full days for attendance, with a “non-legal portion” of 5
days where Echevarria’s short absence occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
known each other for over 10 years. When working together at
SCCTA both were principal officers of the professional police
organization there.5 This bond was more personal than official
during their time of mutual employment with the Respondent.
For example, it was Vargas who Echevarria kept advised of
emergency circumstances when he missed the day of August
1994 FAA training.
When Echevarria eventually completed this training the fol-
lowing April, he happily confided in Vargas of his expectation
in finally becoming a police officer. Vargas had also nomi-
nated Echevarria when Pope asked him for investigator position
prospects, telling Pope that he endorsed his friend’s background
and intelligence.
A long acquaintanceship had also existed between Min and
Echevarria. This manifested during the employment interview
of early July 1994 between these two, which itself was
prompted through the suggestion of Vargas. The episode was
oddly relaxed for an employment interview, lasting as it did
perhaps 2 hours while at an outdoor loading dock. Echevarria
volunteered matters about his background, including an off-
duty escapade in 1991 while employed as a police officer for
the city of San Juan Bautista.6 Min was unconcerned about the
old incident associated with San Juan Bautista, and equally
dismissive of what SCCTA official Simmons might think. For
Min’s part he claimed to be fond of Echevarria at the time from
their past outstanding relationship, and welcomed his becoming
an applicant.
With this narrowing of attention to salient facts, and consid-
ering interpersonal context, an insufficient basis exists for me
to conclude that Echevarria faced conditions so difficult or
unpleasant that he was forced to discontinue working from
April onward. His principal state of mind toward the security
officer job with Respondent was one of resentment. It is true
that various assurances of advancement to higher paying police
work had been voiced to him. However long before these un-
fulfilled assurances became a complete exasperation, Echevar-
ria had become unrealistically agitated over being continued
only as a security officer. The fact was that Moranz had been
hired for a full-time police officer position in summer 1994. For
Echevarria to testify that months afterward he was still com-
plaining to most everybody in the department so they could
“comfort me,” shows that the root cause of his anger was
largely self-induced.
The specific events of 1995 do little to affect my outlook.
Evidence concerning his assistance to Gutierrez in preparation
of the incident report is inconclusive. During Respondent’s
internal affairs investigation of the matter, Hildebrand at-
tempted to bully Echevarria into conceding that he had helped
conceal a tape recording of the altercation. A subsequent reve-
lation showed that Echevarria had only belatedly discovered
existence of such a tape, and Hildebrand’s concluding written
assessment on the subject was to characterize Echevarria as
“truthful and credible.”
Comparably I see no significance to the little that is known
about Respondent’s recruitment for an investigator in late win-
ter 1995. This job is a type of police officer, and requires being
armed while on duty. All that involved Echevarria was a few

5 This organization, termed “the union” in Echevarria’s testimony,
was the Santa Clara County Peace Officers Association. It does not
engage in collective bargaining.
6 This community is approximately 50 miles south from Moffett
Field.
loosely-voiced soothings about his consideration, which was
intrinsically at odds with his lack of FAA certification. I real-
ize that Echevarria testified to canceling out from other sched-
uled part-time work on the day he believed he might start as an
investigator, however the premise for his expectation was not
authoritative. Here Pope credibly denied making the claimed
prediction that Echevarria would become an investigator within
3 days, and more notably Hildebrand credibly contradicted his
claim that a personal certification to carry a concealed weapon
was sufficient for him to come onto NASA jurisdiction while
so armed. I find that the Respondent’s agents were less than
forthright with Echevarria on this matter, but attach no signifi-
cance to the actual selection of Franz Kinkhorst for the added
investigator job in terms of the pertinent constructive discharge
issue.
Another view of the case is that in early 1995 Echevarria was
not really bedeviled by Respondent, but in truth had a situation
of considerable convenience. First in this regard is that he was,
and had been since about August 1, 1994, comfortably also
employed as a part-time police officer at EVC. This permitted
not only that income, but the flexibility to play off one job
against the other in terms of how to most beneficially achieve
an earnings pattern. Associated to this was the advantage of
Echevarria slotting in further professional training, as with the
(1) radar operator course, (2) half day of chemical agent/O.C.
spray instruction, and (3) spring semester college course for
field training officer, done in January, February and March,
1995, respectively.
It is also plain that had the Respondent harbored any abiding
intention to torment Echevarria out of his work with them, no
better opportunity was presented than the late March Warzyn-
iak incident. Whatever it was that precluded him from further
work at building 227, this closed out the last post at which
Echevarria could be legitimately assigned. The overall distri-
bution of physical protection at the facility was one of armed
law enforcement officers, at post, on patrol, and doing special
assignments, augmented by an array of armed security officers
akin, by Echevarria’s own description, to nonskilled, private
security officers. The requirement of near-universal use of
armed personnel was subject to waiver at NASA’s “special
dispensation,” and Vargas testified that at times the Respondent
used an unarmed officer even at the main gate. Echevarria, too,
recalled occasionally working the main gate for the first several
weeks of his employment, until a complaint was made about his
being there unarmed. He also testified that the place to which
he was relocated after building 227 could not be used was the
undescribed gate 17. The implication here is that the Respon-
dent hedged on his assignment, perhaps because by then the
April FAA test was near. In any event as a matter of employ-
ment dynamics, no better opportunity existed for the Respon-
dent to release Echevarria completely even before the new FAA
course had it wanted to.
This also brings into question the matter of hiring, firing and
related authority within the FSLE branch. While Echevarria
attributes the appearance of hiring authority, or some signifi-
cant role in the process, to Min and lesser so to Vargas, the
more persuasive evidence shows otherwise. All these individu-
als, as well as the captains on occasion, did was talk about their
authority in employment matters. However each of them, other
than Vargas when describing the fluid “selection board” con-
cept, denied having such authority. To the contrary Copeland
credibly testified that it was his exclusively, and his words are
SECURITY U.S.A. 383
backed up by his letter dated July 20, 1994, offering the em-
ployment Echevarria soon accepted and commenced.
The countervailing evidence, and the General Counsel’s
chief medium to support the constructive discharge theory, is
Min’s hostile seeming words. I credit Echevarria’s testimony
that Min termed those in charge as pissed off because Echevar-
ria helped Gutierrez, and that in a remark separated by over a
month this had angered the administration of his employer.
However coarse these words, they were spoken familiarly and
with a ring of idle thought expressed casually to a long-known
acquaintance. A comparable fact situation was present in the
Board’s recently decided System One Corp., 322 NLRB 732
(1996). In that case a supervisor’s friendly warning on the
subject of unions was found not to have “played a part” in the
subsequent discharge. I cannot infer that Min’s verbalisms
represented any operative action to discourage Echevarria from
continuing to accept work, if and when offered, as a security
officer.
What I see instead is Echevarria’s financially-grounded ag-
gravation, compounded by his strong sense of occupational
esteem, that did not, as phrased in an analogous Board case,
become “so unbearable that [the employee] was illegally forced
to resign.” See Algreco Sportswear Co., 271 NLRB 499, 500–
501 (1984); Appalachian Machine & Rebuild Co., 317 NLRB
1343, 1349 (1995). I conclude from this that the first branch of
Crystal Princeton is not present. My discussion also constitutes
a Wright Line analysis, by holding first that the General Coun-
sel has failed to mount a prima facie case of constructive dis-
charge, and secondly that even if so viewed the Respondent
would have followed its same course of disregarding Echevar-
ria’s ambiguous status well into summer 1995 even had he not
undertaken the protected concerted aiding of Gutierrez. I shall
thus propose to dismiss the General Counsel’s alternative the-
ory no. 1.
2. Termination issue
a. Gutierrez’ unemployment compensation proceeding
After Gutierrez’ discharge in March he initiated an unem-
ployment compensation proceeding with the California De-
partment of Employment Development (EDD). The Respon-
dent resisted granting of such benefits, and an original hearing
on the claim in late June was rescheduled to August 1. On this
date Gutierrez, Vargas, and Echevarria assembled at the unem-
ployment insurance appeals board as supporters of the claim,
while the Respondent was represented by Human Resource
Manager Suzanne M. Rollinson and Business Operations
Branch Manager Tara Accola. When the hearing opened be-
fore that administrative law judge, Gutierrez asked permission
to be represented by Echevarria. This was granted and the
hearing commenced until a point when Respondent asked to
recess in order to obtain necessary rebutting witnesses. This
resulted in a further postponement until August 29. Gutierrez
then accepted legal advice not to press the small dollar claim
involved, and he notified Echevarria it would not be necessary
to appear again. The EDD hearing on August 29 was in the
nature of a default proceeding, and after testimony on that date
by only Min and Hildebrand the unemployment benefits claim
of Gutierrez was denied.
b. August and September events
Through the summer months of 1995 Echevarria had peri-
odically made inconclusive telephone calls to the watch com-
manders about scheduling, and occasionally went to the facility
in order that personnel could “still see my face,” Then begin-
ning immediately after August 1 he began receiving phone calls
from both Smith and Min. These early August calls from
Smith were work assignments, which Echevarria could not
accept because of lateness receiving the message or conflict
with scheduled work at EVC. The two calls he got from Min
were of an increasingly insistent tone that Echevarria contact
Smith for assignments.
Soon after Min’s second call, Smith and Echevarria con-
versed again by telephone concerning a couple of shifts that
needed to be filled. This time Echevarria asked for 2 weeks
advance notice of available work with Respondent, in order that
he could effectively schedule his other part-time job at EVC.
His final call from Smith, occurring on September 1, was again
a short notice offer of work assignments. This time Echevarria
repeated his need for 2 weeks advance notice, as well as stating
his intention to take the entire month of September off as a
vacation from any work.
In early August Min had instructed Smith to start keeping a
log of his contacts to Echevarria about working. Smith logged
five such calls for the month of August, and the call on Sep-
tember 1 offering a comprehensive set of four assignments
early that month. Smith’s recorded remark about a response to
this offer stated how Echevarria had advised he could not work
at all during September because of a need to rest. Smith and
Min then advised Copeland of the extended time Echevarria
had not worked for Respondent, coupled with his projected
unavailability for all of September. Min provided an accept-
able recollection that Copeland did not even know of Echevar-
ria’s long post-April absence until late summer 1995. Cope-
land considered this revelation, and decided to terminate
Echevarria because his unavailability contributed to excessive
overtime costs in the FSLE branch. Min carried out this deci-
sion with a letter to Echevarria dated September 7 notifying
him of immediate termination.
c. Discussion
On this issue the nature of Echevarria’s involvement being
considered protected and concerted under the Act is more evi-
dent. The law is clear that an employee’s testimony, and by
implication representation, in aid of another’s claim for unem-
ployment compensation is protected by Section 7 of the Act. S
& R Sundries, 272 NLRB 1352, 1357 (1984); American Trans-
fer, 288 NLRB 1425, 1427 (1988); Telex Communications, 294
NLRB 1136, 1140 (1989).
The issue of Echevarria’s final termination warrants close
scrutiny, for if Respondent’s dealings with his post-April status
suffered from inaction, this was more than compensated for by
drastic action in September. The evidence from which an in-
ference of unlawful employer motivation might be found origi-
nates in Min’s harsh remarks during the hiring interview in July
1994. Min apparently sensed some inclination on Echevarria’s
part to marshall collective strength for work-related problems
of his colleagues. This was the conceded and anticipatory ex-
planation given by Echevarria about his occasional role at
SCCTA, and the view Simmons might have had toward it.
Although saying he was unconcerned by that factor in the past,
Min did directly warn Echevarria against involvement with any
union if employed at Moffett Field. He also invoked the name
of Cesar Chavez to symbolize exactly what he meant by such a
directive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
In any pure sense that was the last the subject of a union af-
fects this case. The balance of the supervisory staff showed no
particular hostility to labor organizations, and in fact some of
them had affiliations in the past. The Peace Officers Research
Association of California (PORAC) organization has been in-
troduced into the case as a part of contemporary happenings in
August. That professional organization is readily known at the
facility, and its publications have even infiltrated into the
workplace without concern. The subject of PORAC, therefore,
seems to have no bearing on any evaluation of Echevarria as
union-leaning, or to inspire resentment against him by his em-
ployer.
This leaves then as a basis to infer unlawful motivation for
Echevarria’s termination only the fact that he took time in mid-
summer 1995 to appear with Gutierrez on August 1 at the EDD
hearing. His appearance was clearly adverse to Respondent’s
interests, however only mildly so and predictably without harm
other than as a nuisance factor when Gutierrez forsook his
claim late that month. The General Counsel presented testi-
mony from Vargas that Min had stated Echevarria’s role was
like stabbing him in the back, because it betrayed their agree-
ment not to have meddling in work related affairs of others
(e.g., “step[ping] forward on officers’ behalves. . . .”). Min did
not deny making such an utterance.
However, Echevarria’s own credibility is weakened as it
concerns fundamental facts touching this issue. In a particu-
larly rambling course of his cross-examination, he described the
belief he had formed after listening to a tape recording of Hil-
debrand’s testimony from the unemployment compensation
hearing. He characterized this as Hildebrand telling that ad-
ministrative law judge “that Gutierrez and I had conspired to lie
in his report.” (Emphasis added.) However the word “con-
spired”, or some variation, does not appear in an unofficial
transcript of Hildebrand’s EDD testimony The passage appar-
ently influencing Echevarria’s opinion merely read, “ . . . they
[Gutierrez and Echevarria] tried to make a good situation out of
a bad situation.” The nature of this overstatement seriously
reduces integrity of Echevarria’s testimony in general.
The inferential basis for the General Counsel’s alternative the-
ory no. 2 that remains is thus little more than the timing of
Smith’s log, and the intrinsic validity of Copeland’s reasons for
effecting a termination. I consider the start of Smith’s log more
than a coincidence, and find that it was done because Echevarria
had just drawn attention to himself by leading off the EDD pro-
ceeding on Gutierrez’ claim. However this does little to advance
the General Counsel’s theory, for more significantly August was
a period when the Respondent gave ample opportunity for
Echevarria to again work if he chose. It did so by notification
procedures much the same as those used over his first 8 months
as a part-time employee. Notably, Echevarria testified that in a
late August call he asked Smith what capacity was intended as
between security officer and law enforcement. When Smith told
him it was security officer, Echevarria’s declination was couched
only in terms of previously-made scheduling for work at EVC.
This gives rise to uncertainty whether Echevarria was still limit-
ing himself to acceptance only of police officer work with the
Respondent, particularly when he stressed the need for lengthy
advance notice but without reaffirming the priorities he had much
earlier explained to Pope.
I believe the most meaningful evidence as to Echevarria’s
long period of absence from the Respondent is contained in the
records of his work history at EVC from early May through late
August 1995. These records of dates, hours, and earnings show
Echevarria was occupied on a nearly full-time basis at EVC
throughout that summer. He was, by then, also working occa-
sionally at Systems for Public Safety, leaving him truly disen-
gaged from Respondent. While these facts may not have been
known to Respondent as those months passed, Echevarria’s
notification projecting the entire month of September as a per-
sonal vacation left little reason for Respondent to officially
retain him.
Another recently decided case provides useful contrast to the
circumstances here. Fairlane Town Center, 321 NLRB 105
(1996), involved events affecting employees of a security force
adjunct to corporate management and operation of a large
shopping center. An organization named Police Officers Asso-
ciation of Michigan undertook a typical union representation
campaign among the approximately two dozen security officers
employed at the large mall. The Board adopted a holding that
supervisors viewed one discharged guard as “pro-union” be-
cause of his “critical role” in the campaign, which motivated
management to “rid itself of the sole union organizer on the
security guard staff” when the opportunity to do so was pre-
sented. A succinct application of Wright Line was made in
terms of probative evidence. By such standard the Board held
that employer unlawfully dealt with the terminated security
guard in “treating his refusal to continue working full time as a
voluntary quit.” 321 NLRB at 109.
With the absence of union activities engaged in by, or sus-
pected of, Echevarria, the faint significance of his presence to
open Gutierrez’ EDD proceedings, and an understandable, al-
beit generalized, explanation by Copeland of why he chose not
to keep this part-timer, I am also here not persuaded that the
General Counsel has adequately proven a prima facie case.
I so conclude after taking into account meritorious allega-
tions of independent 8(a)(1) violations, as discussed below,
which I do not see as related to the termination. Should this
view not be adopted in terms of making an analysis as to the
first branch of Wright Line doctrine, I am also satisfied that the
increasing difficulty in maintaining a full complement for
FSLE branch coverage at Moffett Field, as Smith credibly testi-
fied was the problem, meant Respondent would have taken the
same action against Echevarria even in the absence of his pro-
tected concerted activities.
3. Other alleged violations
The consolidated complaint alleges that while awaiting start
of the unemployment compensation appeal hearing on August
1, Vargas reaffirmed to Gutierrez and Echevarrria that he had
heard Min admonish Echevarria not to engage in any union
activities as an employee of Respondent. I have found that this
was a statement made by Min in July 1994, and although re-
mote in time a year later believe, on balance, that Gutierrez and
particularly Echevarria should have been insulated from the
reminder that it was once spoken by this branch chief. The
personal friendship that Vargas had with Echevarria, and his
seeming willingness to support Gutierrez, do not offset the fact
that as a statutory supervisor his remarks are attributable to the
Respondent. I thus agree that sufficient support is present for
this happening to be found as the violation alleged, and that a
remedy is warranted.
On August 3 Pope instructed his lieutenants to carry out a
written poll among FSLE personnel. Its purpose was to ascer-
tain whether in the past any were contacted by Gutierrez in
reference to joining PORAC. Rollinson had actually initiated
SECURITY U.S.A. 385
such a poll, claimedly because the investigating Board agent so
requested. Of 29 listed personnel, 25 made a reply to the ques-
tion.
The General Counsel hinges the 8(a)(1) allegation in this re-
gard on Johnnie’s Poultry Co., 146 NLRB 770 (1964). That
case, among its other holdings, addressed the matter of an em-
ployer conducting employee interviews to ascertain facts for
preparing a defense in the event complaint issued on charges
being investigated. The doctrine is reasonably applicable when
polling of employees is achieved by a written method, as with
questionnaire format found violative in Forrest City Grocery
Co., 306 NLRB 723, 729–730 (1992).
The Respondent’s explanation of how this all came about is
readily rejected. Aside from Rollinson being in an occupation
that should have dictated skepticism about the supposed re-
quest, it went forward even though Copeland did so basically
under protest and thinking it was not right. The attempt to foist
blame for creating this poll on a Board agent is a highly dubi-
ous explanation, which I find to be intrinsically implausible.
Cf. Adair Standish Corp., 290 NLRB 317, 330–331 (1988).
Here Respondent awkwardly and deliberately contravened all
the safeguards attaching to such action as set forth and long
applied from Johnnie’s Poultry. These are:

[T]he employer must communicate to the employee the pur-
pose of the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary basis . . . .
146 NLRB at 775.

These factors frame an outer limit for “permissible inquiry” of
employees on the point involved. Here the poll was abrupt,
mandatory-seeming, and without any accompanying statement
of purpose. I thus also find sufficient support present to show
merit in this discrete allegation of the consolidated complaint.
See Astro Printing Services, 300 NLRB 1028, 1035–1036
(1990).
CONCLUSIONS OF LAW
1. By its unlawful conduct described below, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
2. By verbally acknowledging that it had conditioned the
employment of a person on his agreement to refrain from en-
gaging in union activities the Respondent violated Section
8(a)(1) of the Act.
3. By interrogating employees with a written poll of whether
they had been contacted with reference to joining an association
of police officers Respondent violated Section 8(a)(1) of the
Act.
4. The Respondent has not otherwise violated the Act as al-
leged in the consolidated complaint.
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.
Specifically, a recommended remedy of conventional notice
posting shall be made, to inform employees of the Respon-
dent’s obligation to avoid intrusion on their rights under Sec-
tion 7 of the Act. By this requirement, the dual purpose public
interest of (1) advising employees that the Board has protected
their rights, and (2) preventing or deterring future violations,
will be clearly served. NLRB v. Hiney Printing Co., 733 F.2d
1170, 1171 (6th Cir. 1984).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Security U.S.A., Mountain View, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Verbally acknowledging that it had conditioned the em-
ployment of a person on his agreement to refrain from engaging
in union activities.
(b) Interrogating employees with a written poll of whether
they had been contacted with reference to joining an association
of police officers.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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 after service by the Region, post at its fa-
cility in Mountain View, California, copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt 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.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is
dismissed insofar as it alleges violations of the Act not specifi-
cally found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has 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

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
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 verbally acknowledge that we had conditioned
the employment of Javier Echevarria on his agreement to re-
frain from engaging in union activities.
WE WILL NOT interrogate employees with a written poll of
whether they had been contacted by David Gutierrez with ref-
erence to joining the Peace Officers Research Association of
California (PORAC).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
SECURITY U.S.A.

Sharon Chabon, Esq., for the General Counsel.
Michael J. Reiser, Esq. (Rankin, Sproat & Pollack), of Oak-
land, California, for the Respondent.
William Sokol, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Charging Par-
ties.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. On
April 29, 1997, Administrative Law Judge David G. Heilbrun
issued a decision in this case finding inter alia that the Respon-
dent’s refusal to transfer Javier Echevarria from the position of
part-time security officer to the higher position of law enforce-
ment officer on April 10, 1995,1 did not result in the construc-
tive discharge of Echevarria on April 25. Judge Heilbrun fur-
ther found that the subsequent termination of Echevarria on
September 7 was not unlawful. By Order of January 20, 1998, a
three-member panel of the Board remanded the proceeding to
Associate Chief Administrative Law Judge William L. Schmidt
for designation of an administrative law judge to resolve the
issue of whether the Respondent’s refusal to transfer Echevarria
on April 10 was unlawful.2 The Order remanding specifically
requires that the designated administrative law judge utilize the
framework set forth in Wright Line3 in making this determina-
tion and further requires that factual findings, conclusions of
law, and a recommended Order be set forth in the Supplemental
Decision. By order of February 4, 1998, Associate Chief Ad-
ministrative Law Judge William L. Schmidt designated me to
consider the case on remand.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions
before Judge Heilbrun. On the entire record4 and after consider-

1 All dates are in 1995 unless otherwise referenced.
2 At the time of the remand, Judge Heilbrun had retired.
3 251 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, 399–403 (1983).
4 In making findings of fact, I have relied exclusively on the credibil-
ity determinations of Judge Heilbrun.
ing the briefs filed by counsel for the General Counsel and for
the Respondent,5 I make the following
FINDINGS OF FACT
In May 1994, the Respondent assumed security responsibili-
ties at Moffett Field - NASA Ames Research Center, located in
Mountain View, California. It employed uniformed security
officers and uniformed law enforcement officers. Both classes
of officers were required to complete a Federal Arrest Author-
ity (FAA) course in order to carry fire arms in the course of
their duties. Echevarria began working for the Respondent as a
security officer in August 1994. He had been previously cau-
tioned by Chief of Police Min that he was not to engage in any
union activities as an employee of the Respondent.6 Min told
Lieutenant Vargas that he would move Echevarria to law en-
forcement with the next opening. Min also explained to Vargas
that Echevarria would not be able to do any unionizing at the
Respondent’s facility.
Due to a personal emergency, Echevarria failed to complete
the FAA course when it was given in August 1994. Accord-
ingly, he was assigned to work at building 227, the only un-
armed security guard work available for the Respondent, and
was ineligible to work as a law enforcement officer until he
completed the course. Moreover, in late March 1995, a NASA
independent contractor barred Echevarria from his continuing
assignment at building 227 because of a dispute between the
two. Respondent continued Echevarria’s employment by keep-
ing Echevarria hidden, “in the back 40.”
On January 24, security officer Gutierrez encountered a
young man at the facility’s main gate. A physical altercation
ensued in which Gutierrez placed a choke hold on the young
man, threw him down and handcuffed him. Night–shift Lieu-
tenant Elliott instructed Gutierrez to prepare an incident report.
Gutierrez received assistance from fellow security officer
Echevarria. Judge Heilbrun specifically found, “Echevarria’s
assistance in preparation of Gutierrez’ incident report during
the early morning hours of January 25 was protected concerted
conduct under the Act.” (JD(SF)–33–97 at 10:26-28). Upon
reading the incident report, Elliott expressed concern about the
legal justification for stopping and detaining the youth.
Security officer Gutierrez’ actions were subsequently fully
investigated. Echevarria was questioned extensively during the
course of the 6-week investigation. As Judge Heilbrun found,
“[Captain] Hildebrand attempted to bully Echevarria into con-
ceding that he had helped conceal a tape of the altercation [be-
tween Gutierrez and the youth].” (JD(SF)–33–97 at 13:29–31).
However, Hildebrand subsequently discovered that Echevarria
had only belatedly discovered the existence of such a tape and
Respondent concluded that Echevarria was truthful and credi-
ble, according to captain Hildebrand, the investigating officer,
5 On remand, the parties submitted their briefs to Judge Heilbrun and
their briefs on exception to the Board.
6 During a preemployment conversation in July 1994, Echevarria
told Min that a former supervisor might not express a favorable refer-
ence because Echevarria had intervened as president of the professional
association at that place of employment. Min responded that he did not
want Echevarria to start or participate in a union at Moffett Field or
bring any “Cesar Chavez bull shit” to the facility. Judge Heilbrun spe-
cifically credited Echevarria’s testimony regarding this conversation
and discredited Min’s denial of uttering cautionary or threatening re-
marks to Echevarria about union activism. (JD(SF)–33–97 at 10:7–9
and 10:13–1015.)
SECURITY U.S.A. 387
or, as Echevarria recalled, was congratulated for his integrity.
Gutierrez was discharged on March 14.
In February, during the course of the Gutierrez investigation,
Echevarria believed that he was recommended for the position
of investigator. Echevarria learned that the position was can-
celed and asked Chief of Police Min about the situation. Min
responded that Echevarria had, “pissed some people off at Mof-
fett Field police department.” Min cautioned Echevarria that he
would have to gain favor there before he would receive the
investigation position. Judge Heilbrun specifically credited
Echevarria’s testimony that Min “termed those in charge as
pissed off because Echevarria helped Gutierrez, and that in a
remark separated by over a month, this had angered the admini-
stration of his employer.” (JD(SF)–33–97 at 14:39–41.)
Echevarria spoke frequently to Min, Pope, Vargas, and oth-
ers about his desire to be transferred to law enforcement officer.
He received, “various assurances of advancement to higher
paying police work.” (JD(SF)–33–97 at 13:19–20.) On April
10, Respondent hired four full-time and one part-time law en-
forcement officers. On April 15, Echevarria and several of the
newly hired officers took the FAA course. Echevarria success-
fully completed the FAA test, thus qualifying to carry a fire
arm as part of his duties for Respondent. On his next workday,
April 24, Echevarria, who understood that the FAA require-
ment was the last step to his becoming a law enforcement offi-
cer, requested his police uniform when he reported for duty. He
was told that he would continue to work as a security officer.7
In 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,
399–403 (1983), the Board articulated the allocation and order
of proof in cases involving 8(a)(1) or (3) violations which turn
on employer motivation as follows: First, the General Counsel
must make a prima facie showing sufficient to support an infer-
ence that protected activity was a motivating factor in the em-
ployer’s decision. Upon making such a showing, the burden
shifts to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
activity.
In Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), the
Board stated that it had traditionally described the General
Counsel’s burden as that of establishing a prima facie case.
Noting, however, that in Southwest Merchandising Corp. v.
NLRB, 53 F.3d 1334, 1340 fn. 8 (1995), the court suggested
that the General Counsel’s burden might be more appropriately
described as a burden of persuasion, the Board concluded that
the change did not represent a substantive change in Wright
Line and restated that test as follows: “the General Counsel
[must first] persuade that antiunion sentiment was a substantial
or motivating factor in the challenged employer decision. The
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even if the employees had not engaged in protected activity.”
I find that the General Counsel has presented sufficient evi-
dence to support an inference that Echevarria’s protected con-

7 According to Echevarria, he spoke with Min on April 25. Min told
Echevarria that Echevarria’s role in assisting Gutierrez affected
Echevarria’s job situation. Min further stated that it was going to be
awhile before Echevarria got the law enforcement position because
Echevarria had angered the administration at Moffett Field, the location
at which Respondent provided security. Judge Heilbrun specifically
discredited this portion of Echevarria’s testimony.
certed conduct was a motivating factor in Respondent’s failure
to transfer Echevarria from the position of security officer to
the position of law enforcement officer. I rely specifically on
Judge Heilbrun’s finding that Echevarria engaged in protected
concerted activity in assisting Gutierrez in preparation of the
incident report8 and his further finding that the report as
submitted was influential in determining whether Gutierrez was
disciplined. Further, I find that not only did the Respondent
have knowledge of the actions of Echevarria but it had earlier
voiced animosity toward Echevarria with regard to union ac-
tivities and acknowledged that there was animosity toward
Echevarria because of his assistance to Gutierrez.
The Respondent asserts that by function, organizational
structure and necessary qualifications, a security officer cannot
be transferred to police officer. I do not find this argument per-
suasive as the Respondent’s chief of police, Min, told lieutenant
Vargas that Echevarria would be transferred at the first avail-
able opening.9 Moreover, the Respondent argues that Echevar-
ria was not qualified for the law enforcement position. In
agreement with Judge Heilbrun, I find that Echevarria’s train-
ing, experience, and completion of police academy adequately
qualified him for the position. In addition, the Respondent notes
that Echevarria never filed a formal application for the position
of police officer. I agree with Judge Heilbrun’s dismissal of this
argument: The Respondent was on notice that Echevarria
wanted promotion to the law enforcement position and there is
no evidence that he was ever instructed to submit a second
employment application. Echevarria applied originally for the
position of federal police officer; Echevarria expressed, “a nag-
ging drumfire of dissatisfaction”10 regarding failure to attain the
law enforcement position.
Finally, Respondent notes that it certainly had ample oppor-
tunity to dismiss Echevarria when the dispute arose at building
227 in late March and there was absolutely no other unarmed
security guard or law enforcement officer position available.
However, rather than dismiss Echevarria at that point, Respon-
dent hid him in “the back 40,” as Min described it. Although
failure to discharge Echevarria in late March evidences some
leniency toward Echevarria, it does not counter the failure to
transfer it appears that Min was willing to allow Echevarria to
continue working as a security officer as long as he remained
out of sight. However, the evidence also clearly indicates that
Min understood that the administration at Moffett Field was
8 The Respondent contended that Echevarria’s limited role in assist-
ing Gutierrez was part of his daily work and not protected concerted
activity. Judge Heilbrun found that Echevarria’s assistance to Gutierrez
was concerted activity regarding Gutierrez’ employment and, thus,
protected under the Act. See, e.g., Chromalloy American Corp., 263
NLRB 244 (1982) (relying in part on Illinois Bell Telephone Co., 251
NLRB 932 (1980), and holding that a request for assistance regarding a
potential disciplinary action from a fellow employee is grounded in
Sec. 7); Yellow Freight Systems., 297 NLRB 322, 326 (1989) (assisting
another employee in filing sexual harassment charge is protected con-
certed activity).
9 As Judge Heilbrun found, Min did not have actual authority to hire
or fire. This was exclusively the province of Project Manager Cope-
land. However, Min effectively recommended hiring of Echevarria and,
according to Copeland, he acceded to Min’s assessment of Echevarria
on several occasions when he had misgivings about Echevarria. In any
event, Min’s statements adequately demonstrate that Echevarria was
not transferred due to the animosity toward Echevarria’s assistance of
Gutierrez.
10 JD(SF)–33–97 at 12:9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
angry at Echevarria for his assistance of Gutierrez; i.e., for his
protected, concerted activity. Given the assurances made to
Echevarria regarding transfer to the law enforcement position
and Echevarria’s successful completion of the FAA require-
ment, the fact that he could have been fired in late March, prior
to his FAA certification, is of little relevance. I conclude, there-
fore, that the Respondent would not have taken the same action
(failure to transfer) in the absence of Echevarria’s protected,
concerted activity.
CONCLUSION OF LAW
By failing to transfer Javier Echevarria from the position of
security guard to the position of law enforcement officer on
April 10, 1995, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
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. Specifically, in light of Judge Heil-
brun’s finding that the Respondent did not violate the Act in
terminating Echevarria’s employment in September.11 The
Respondent must make Echevarria whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
April 10, 1995, the date of failure to transfer him, until Sep-
tember 7, 1995, the date of his termination, 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 Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended12
ORDER13
The Respondent, Security U.S.A., Mountain View, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Verbally acknowledging that it had conditioned the em-
ployment of a person on his agreement to refrain from engaging
in union activities.
(b) Interrogating employees with a written poll of whether
they had been contacted with reference to joining an association
of police officers.

11 The General Counsel has abandoned its theory that Echevarria was
constructively discharged. See G.C. Br. in Support of Exceptions at 6
and the General Counsel’s reply to Respondent’s opposition at 2–3, fn.
3.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusion, 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.
13 This recommended Order incorporates the Order set forth in Judge
Heilbrun’s decision as well as the further violation found herein. The
appendix which follows similarly incorporates Judge Heilbrun’s ap-
pendix.
(c) Failing to transfer Javier Echevarria from the position of
security guard to the position of law enforcement officer be-
cause of his protected, concerted activity.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Javier Echevarria whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision.
(b) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(c) Within 14 days after service by the Region, post at its fa-
cility in Mountain View, California, copies of the attached no-
tice marked “Appendix.”14 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt 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 to
all current employees and former employees employed by the
Respondent at any time since April 10, 1995.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is
dismissed insofar as it alleges violations of the Act not specifi-
cally found.

14 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.”