Security Walls, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 21, 2010

28-CA-022701 (N.L.R.B. Apr. 21, 2010)

JD–26–10
Carlsbad, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SECURITY WALLS, LLC
and Case 28-CA-22701
ROYAL JACOBS, an Individual
Mara-Louise Anzalone, Esq.,
for the General Counsel
George Cherpelis, Esq. (Jackson, Lewis, LLP),
Phoenix, AZ, for the Respondent
DECISION
Statement of the Case
JEFFREY D. WEDEKIND, Administrative Law Judge. The General Counsel alleges
that Respondent, a private security subcontractor at the U.S. nuclear waste facility in Carlsbad,
New Mexico, violated Section 8(a)(1) of the Act in various respects while investigating the
unauthorized release of a “controlled”/“official use only” document to the General Counsel in a
prior unfair labor practice proceeding. Specifically, the General Counsel alleges that the
Respondent unlawfully told employees that they were not allowed to copy or distribute
documents relating to wages, hours, and other terms of employment, interrogated employees
about whether they or other employees had done so, and solicited employees to monitor and
report on other employees’ use of such documents.
The underlying charge was filed by Royal Jacobs, an individual, on September 22 2009.
Jacobs subsequently amended the charge on November 30, 2009, and the General Counsel
issued the complaint the same day. The Respondent thereafter filed its answer denying the
substantive allegations on December 10, 2009.
Following two prehearing conferences, the case was tried before me in El Paso, Texas,
on February 23 and 24, 2010. The Respondent and General Counsel thereafter filed
posthearing briefs on March 31, 2010.1 After considering the briefs and the entire record,
including my observation of the demeanor of the witnesses, I make the following
Findings of Fact
I. Jurisdiction
The Respondent is a limited liability company that provides contract security at the
Waste Isolation Pilot Plant (WIPP) in Carlsbad, New Mexico. The Respondent admits, and I
find, that in conducting its operations during the 12-month period ending September 2009, it

1 Charging Party Jacobs did not appear or testify in the proceeding.
JD–26–10
5
10
15
20
25
30
35
40
45
50
2
performed services valued over $50,000 outside the State of New Mexico, and that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The relevant facts are essentially uncontroverted. Respondent has provided security at
the nuclear waste facility since April 1, 2008, pursuant to a subcontract with Washington True
Solutions, LLC (WTS), the general contractor responsible for running the facility for the
Department of Energy (DOE). Respondent directly employs 28 security protective officers
(SPOs) and 7 additional security and administrative staff at the site. Tr. at 21-22 and 85.
At the time of the relevant events here, work rules for the SPOs were set forth in the
Employee Handbook, which Respondent provided to every employee without restriction on
removal from the facility (i.e. the employees were allowed to take the handbook home).
However, guidelines for carrying out daily duties and assignments were also set forth in so-
called “protective force orders” (PFOs).
PFOs were “official use only” (OUO), and therefore “controlled”, documents, and were
stamped as such when created.2 Accordingly, they were kept in a security manual reserved for
such OUO documents (a loose-leaf binder formally titled “WIPP Security Administration
Manual”), which in turn was kept in the facility’s central alarm station, a hardened structure with
bullet resistant walls and windows that is manned 24/7. Although the security protective
officers had access to the PFOs in the manual, they were not allowed to disclose them to
unauthorized individuals. Tr. at 22-29, 44-53, 60-61, 73, 82-84, 106, 131-132, and 144-145.
Respondent’s project manager at the WIPP site, Richard De Los Santos, was ultimately
responsible for ensuring that PFOs were properly designated/stamped as controlled. However,
the author of a document was initially responsible for determining whether it should be marked
as OUO by referring to DOE Order 471.3, “Identifying and Protecting Official Use Only
Information” (GC Exh. 5). Tr. at 28-30.3 The DOE order, which has been in effect since

2 “Controlled” documents also included various other types of information, all of which had
an even higher controlled status or “sensitivity” than OUO documents. Such information
included, but was not limited to, sensitive information, sensitive unclassified information (SUI),
unclassified nuclear information (UCNI), confidential information, restricted data, secret
information, and top secret information (the highest level). Tr. at 26, 67-68, and 109-110.
3 According to De Los Santos, after the relevant events here occurred, he designated his
operational security officer, Clint Casingham, to be the “coordinator” and “go to guy” for the
Respondent’s protective force orders and procedures. In that function, Casingham now
conducts the initial review of all documents to determine if they have “information in there that
could be used by an adversary against us” and should therefore be designated OUO or higher.
Tr. at 28-31, and 54. Various other changes for simplifying procedures and protecting OUO
documents were also instituted. See Tr. at 79 – 81.
JD–26–10
5
10
15
20
25
30
35
40
45
50
3
2003,4 provides that, to be designated “official use only,”
the information must be unclassified; have the potential to damage
governmental, commercial, or private interests if disseminated to persons who do
not need to know the information to perform their jobs or other DOE-authorized
activities; and fall under at least one of eight Freedom of Information Act (FOIA)
exemptions (exemptions 2 through 9 . . . ) (par. 4.a).
Consistent with the above, the order provides that access to documents marked OUO or
containing OUO information “must only be provided to those persons who need to know the
information to perform their jobs or other DOE-authorized activities” (par. 4.e). If a FOIA request
is filed for an OUO document, it must be reviewed and processed under the Agency’s FOIA
regulations (par. 4.h). See also Tr. at 88 and 112.
With respect to enforcement, the order provides that an “administrative penalty” may be
imposed against any employee who intentionally or negligently releases such documents or
information, intentionally does not mark a document known to contain OUO information, or
intentionally marks a document known not to contain OUO information (par. 4.g). An
attachment to the order (Attachment 2) further indicates that the contractor (in this case WTS) is
responsible for compliance and for “flowing down” the requirements to subcontractors (in this
case Respondent Security Walls). See also Tr. at 89-90, 113-117, and 133-139.
B. Unauthorized Release of Document to General Counsel
On July 28 and 29, 2009, an unfair labor practice hearing involving the Respondent was
held before Administrative Law Judge Margaret G. Brakebusch. The complaint in the case (28-
CA-22483) alleged that the Respondent committed various Section 8(a)(1) violations between
April 2008 and February 2009, including reprimanding Jacobs and another employee,
discharging a third employee (Orlando Franco), and maintaining overbroad confidentiality rules
in the Employee Handbook and Restrictive Covenants Policy that effectively prohibited
employees from discussing wage rates, benefits, promotions, demotions, bonuses, or other
terms and conditions of employment.
During the hearing in the case, a four-page document from the security manual was
offered by the General Counsel for admission into the record. The first page was the cover
page of the security manual, titled “WIPP Security Administration Manual, Waste Isolation Pilot
Plant, Carlsbad, New Mexico.” It was stamped “Controlled Document” and also contained the
following information inside a box at the bottom:

4 Although the order on its face states that it “expires 4-9-07”, DOE’s current legal counsel
and FOIA liaison in Carlsbad, George William Hellstrom, testified that it has remained in effect
since that time. Tr. at 114.
JD–26–10
5
10
15
20
25
30
35
40
45
50
4
OFFICIAL USE ONLY
Contains “Circumvention of Statute” Information5
Department of Energy approval required
prior to public release
Reviewer: ______________[signed]______________________
JR Galle, DOE-CBFO Security Manager
Date: _______________10 Sep 2001_____________________
Attached to the cover page were three pages specifically relating to security officer
staffing and procedures including shift captain and SPO responsibilities with respect to
assignment and administration of overtime at the nuclear waste facility. The first of these three
pages indicated that the provisions (referred to as “Procedure No. SEC-020”) were part of the
security manual, had been last revised on September 26, 2007, and were approved at that time
by the WIPP security manager (Lawrence Barela), who worked for the previous subcontractor,
Santa Fe Securities. Like the cover page of the manual, it was stamped “Controlled Document.”
“OFFICIAL USE ONLY” also appeared at both the top and bottom of the page, although without
any indication that this designation was reviewed by DOE.6 Each subsequent page was
similarly stamped “Controlled Document” and “OFFICIAL USE ONLY”. GC Exh. 3; and Tr. at 21,
51, 144, and 236-237.
When the General Counsel attempted to introduce the document through a witness at
the hearing, De Los Santos noticed the cover page and immediately advised Respondent’s
counsel that the General Counsel was not supposed to have the document without
authorization. Respondent’s counsel thereupon objected to the document’s admission, and the

5 As indicated by Hellstrom, DOE’s legal counsel/FOIA liaison in Carlsbad (Tr. at 118), the
phrase “circumvention of statute” refers to the so-called “high 2” Exemption in FOIA for
predominantly internal documents the disclosure of which would risk circumvention of agency
statutes and regulations. This exemption protects from disclosure, inter alia, personnel practices
and procedures that could pose a security risk if made public. See Elliott v. U.S. Dept. of
Agriculture, 596 F.3d 842 (D.C. Cir. 2010), and cases cited therein.
6 The record is insufficient to determine whether DOE’s official OUO designation on the
cover of the manual 6 years earlier, in September 2001, would have carried over to the
September 2007 revision. Hellstrom’s testimony indicates that this might depend on whether
the original document existed in the manual when it was reviewed by DOE. In any event,
Hellstrom confirmed De Los Santos’ testimony that a subcontractor such as the Respondent
could itself designate a document OUO if it satisfied the requirements of DOE Order 471.3.
Hellstrom further testified that DOE presumes a document is properly marked OUO until a
review shows otherwise. See Tr. at 123-131.
JD–26–10
5
10
15
20
25
30
35
40
45
50
5
General Counsel eventually withdrew it. See Resp. Exh. 1, p.2 (describing events of July 29,
2009); and Tr. at 15, 33, 51, and 233.7
C. Respondent’s Investigation
According to De Los Santos, the Respondent suspected that alleged discriminatee
Franco, who had filed the underlying charge challenging his discharge, had given the document
to the General Counsel. Tr. at 34-35. Nevertheless, that was not the end of the matter. On
August 5, 2009, WTS contract administrator Mark Friend wrote a letter to Juanita Walls, the
Respondent’s co-owner and chief manager in Knoxville, Tennessee, regarding “Inappropriate
Document Control” at the facility. The letter, which was copied to De Los Santos, expressed
concern that the unauthorized disclosure indicated “a breakdown in the controls associated with
such documents.” It therefore directed Respondent to “immediately conduct an internal
investigation to determine how the document was obtained, what was the extent of staff
involvement, and what breakdown in controls allowed the document to be released.” GC Exh.
2; and Tr. at 36, 89, and 160-161.
In response to this letter, later the same month, Roderick Walls, Juanita Walls’ husband
and co-owner of Security Walls (and a former FBI agent), traveled to the WIPP facility and
developed an interview plan, including a list of prepared questions. After running the questions
by his wife and several WTS officials, and receiving no objection or revisions, he proceeded to
individually interview each and every person employed by Respondent at the site, including De
Los Santos. Tr. at 37-43, 85-86, 152, 162, 165, 171, 180-184, and 216-217. At each interview,
after initial introductions, Walls asked/read the following four questions -- and only the following
questions -- from his prepared list:
1. Are you aware that it is prohibited activity to engage in the unauthorized
copying and or removal (from the WIPP site) of any sensitive or restricted
documents or material? Are you further aware that it is prohibited activity to
engage in the re-distribution of such documents and or material to un-authorized
individuals?
2. Have you ever engaged in unauthorized copying, removal or distribution of
Official Use Only (OUO), sensitive, or restricted documents belonging to the
WIPP site?
3. Have you ever observed any other Security Walls WIPP employee engage in
the unauthorized copying, removal or distribution of OUO, sensitive or restricted
documents or materials?
4. Do you have any knowledge that any Security Walls WIPP employee has been
engaged in the unauthorized copying or removal of sensitive or restricted
documents?

7 Judge Brakebusch’s decision in the case (which found a violation only with respect to
certain of the Respondent’s confidentiality rules) issued on November 25, 2009 (JD (ATL)-31-
09), and is currently pending before the Board on exceptions. The decision does not address
the circumstances surrounding the General Counsel’s acquisition of the subject document or its
relevance, confidentiality, and/or admissibility.
JD–26–10
5
10
15
20
25
30
35
40
45
50
6
Walls also took notes of the employees’ answers, and he requested the employees to
review them and sign the document. See GC Exhs. 4 (p. 3), 6, and 7; Resp. Exh. 4; and
Tr. at 100-104, 145-147, 185-187, 192, 199, and 211.
After the investigation was completed, Walls and De Los Santos prepared a summary
report, which was submitted to WTS. The report concluded, albeit without any direct evidence,
that Franco had provided the document to the General Counsel. Resp. Exh. 1; and Tr. at 40,
91-93, and 105.
D. Evidentiary Issues
Before and during the hearing in this case, a substantial dispute arose over the
admissibility and relevance of the four-page document that the General Counsel had initially
sought to introduce at the prior hearing before Judge Brakebusch. After considering the parties’
pretrial briefs on the issue, at the beginning of the hearing I gave notice that I was inclined to
admit the document subject to a protective order, but reserved a final ruling until after testimony
on the matter (Tr. 11–13). Thereafter, at the close of the trial, I did, in fact, admit the document
(GC Exh. 3) over the Respondent’s objection. However, over the General Counsel’s objection, I
also issued a protective order, requiring that the document “be placed in a sealed file to be
opened only by Agency personnel as necessary to evaluate and decide the issues in this
particular case,” and that it “not . . . be furnished or disclosed to outside non-governmental
sources or the public pursuant to a request under the Freedom of Information Act or otherwise”
(Tr. at 239).
Having reviewed the entire record, I hereby reaffirm my ruling. The Respondent has
advanced a number of arguments against admission of the document. At the outset of the
hearing, Respondent asserted that it “was not properly released,” is “not appropriately in the
hands of the General Counsel,” and “is the equivalent of a stolen document” (Tr. at 10 and 48).
However, the Board has long held that even “stolen” documents are admissible, at least in the
absence of any showing (and there is none here) that the Government acted in collusion with
the thief. See NLRB v. South Bay Daily Breeze, 415 F.2d 360, 363-365 (9th Cir.
1969)(thoroughly discussing the reasons for the policy and upholding it); and Air Line Pilots
Assn., 97 NLRB 929, 933 (1951). See also U.S. v. Janis, 428 U.S. 433 (1976).
At the close of trial and in its posthearing brief, the Respondent also asserted that the
last three pages of the document had not been sufficiently identified, i.e. no witness had testified
that SEC-020 was actually the document attached to the cover page at the prior hearing.
However, a document may be identified and authenticated by circumstantial as well as direct
evidence. See FRE 901(b)(4). See also Sunland Construction Co., 311 NLRB 685, 692-698
(1993). Here, all four pages indicate on their face that they are part of the “WIPP Security
Administration Manual” and, when shown them at the hearing in this case, De Los Santos
testified that he recognized them from the manual (Tr. at 49, 53, and 59). In addition, both De
Los Santos and Friend (who has worked at the site for 17 years) testified that no other
controlled document has ever been compromised before (Tr. at 59-60 and 159-164). Moreover,
Ms. Anzalone, counsel for the General Counsel in this proceeding, verified on the record that
the four-page document is the document that was given to her by counsel for the General
Counsel in the prior case (Tr. at 235). Finally, there is no evidence that it is not the four-page
document that counsel had attempted to introduce in that proceeding, or that it has been altered
in any way. Accordingly, I find that a prima facie showing has been made that the document is
what it is purported to be, and that this showing has not been rebutted. See Alexander Dawson,
Inc. v. NLRB, 586 F.2d 1300, 1302 (9th Cir. 1978), enfg. 228 NLRB 165 (1977).
JD–26–10
5
10
15
20
25
30
35
40
45
50
7
I also reaffirm my finding of good cause under FRCP 26(c) to issue a protective order.
Neither the contents of the document nor the Respondent’s security procedures have remained
entirely confidential. Indeed, counsel for the Respondent himself read a portion of the
document into the record during opening arguments (Tr. at 11-12). Further, a fairly detailed
description of the security officer force appears in the recent decision issued by Judge
Brakebusch in the earlier unfair labor practice proceeding, which is available to the public on the
NLRB website (http://www.nlrb.gov/ research/decisions/alj_decisions.aspx). Moreover, De Los
Santos testified that the document was superseded by new orders after the events here, is no
longer in effect, and is currently “archived” pending destruction (Tr. at 45-46, 81-83, and 97).
However, Hellstrom testified that it nevertheless remains presumptively exempt from disclosure
under FOIA and should be “properly managed in accordance with nondisclosure or within the
court as a sealed document” (Tr. at 135-139). In light of this testimony by DOE’s legal
counsel/FOIA liaison, the nature of Respondent’s business (providing security at a nuclear
waste facility), and the nation’s greatly heightened security awareness since 9/11 (of which I
take judicial notice under FRE 201), I conclude that the protective order remains appropriate
and that the document should therefore not be disclosed without prior DOE approval. See
generally Teamsters Local 917 (Peerless Importers), 345 NLRB 1010, 1011 (2005).
E. Analysis of Substantive Allegations
As indicated above, the complaint alleges that, in conducting the August 2009 employee
interviews, Respondent violated Section 8(a)(1) of the Act by: 1) orally promulgating an overly
broad and discriminatory rule prohibiting employees from copying and/or removing, or
distributing to unauthorized individuals, documents relating to their wages, hours, and other
terms and conditions of employment; 2) interrogating employees about their concerted activities
and those of other employees; and 3) soliciting employees to ascertain and disclose to
Respondent the concerted activities of other employees. GC Exh. 1(e). For the reasons
discussed below, I find that a preponderance of the evidence supports the first (in part) and
second of these alleged violations, but not the third.
1. Alleged overbroad confidentiality rule
As a threshold matter, Respondent contends that no confidentiality “rule” was actually
promulgated or communicated during the interviews. See, e.g., Tr. at 19. However, the evidence
establishes otherwise. Walls conceded at trial that he intended the first questions to be
“rhetorical” in order to make sure that employees were aware that they are not supposed to
engage in the unauthorized copying, removal, or distribution of sensitive or restricted
documents. Tr. at 188. He also specifically admitted that employees were “reinstructed”
regarding the proper controls associated with duplication and dissemination of controlled
documents and the disciplinary repercussions for violations. Tr. at 94. See also Resp. Exh. 1, p.
4, par. C (Remedial Actions). Thus, in agreement with the General Counsel, I find that Walls did,
in fact, communicate a confidentiality rule to the employees during the interviews.
Respondent also contends that, even assuming a rule was communicated, it was not
overbroad and did not restrict employees in the exercise of their Section 7 rights as alleged.
However, again, for the reasons set forth below, I find that a preponderance of the evidence
establishes otherwise.
It is well established that employees have a protected right to discuss and distribute
information regarding wages, hours, and other terms and conditions of employment. See, e.g.,
Mobile Exploration & Producing U.S., Inc., 323 NLRB 1064,1068 (1997), enfd. 156 F.3d 182
(5th Cir. 1998). Indeed, it has been described as “the most basic of Section 7 rights.” Double
JD–26–10
5
10
15
20
25
30
35
40
45
50
8
Eagle Hotel & Casino, 341 NLRB 112, 115, fn. 14 (2004). See also Jeannette Corp. v. NLRB,
532 F.2d 916, 919 (3d Cir. 1976)(dissatisfaction with wages and benefits is the “grist” and
“sinew” for concerted action). Accordingly, the Board has held that employer confidentiality
rules must be carefully crafted to avoid impermissibly interfering with that right.
Extant Board law sets forth the following framework for evaluating such employer rules.
The rule must first be examined to determine whether it explicitly restricts Section 7 activity. If it
does not, the circumstances must be evaluated to determine whether: 1) employees would
reasonably construe the language of the rule to prohibit Section 7 activity; 2) the rule was
promulgated in response to Section 7 activity; or 3) the rule has been applied to restrict the
exercise of Section 7 rights. If the answer to any of the above is affirmative, the rule infringes
on employee rights under the Act. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). It is
therefore unlawful unless the employer articulates and establishes a legitimate and substantial
business justification for the rule that outweighs the infringement on employee rights. See, e.g.,
Caesar’s Palace, 336 NLRB 271 (2001); and Phoenix Transit System, 337 NLRB 510 (2002).
But see Double Eagle Hotel & Casino, supra; and NLS Group, 352 NLRB 744, 745 (2008).
Here, the confidentiality rule communicated at the employee interviews did not expressly
refer to employee wages, hours, or other terms and conditions of employment. Neither the
initial, rhetorical questions, nor any of the other questions asked by Walls, specifically
mentioned employee records or material. Walls also did not mention or refer to the prior unfair
labor practice proceeding initiated by former-employee Franco or the release of the PFO
regarding staffing and overtime to the General Counsel in that proceeding. Tr. at 145-146, 192,
and 211-212.8 Accordingly, I find that the rule did not expressly restrict Section 7 rights.
I also find that the rule was not promulgated in response to Section 7 activity or applied
to restrict Section 7 activity (and therefore was not “discriminatory” as alleged in the complaint).
The investigation was conducted at the direction of WTS, which was not a party to the prior
Board proceeding and had no interest in Respondent’s internal personnel matters or in
protecting Respondent-sensitive information, as opposed to DOE-sensitive documents exempt

8 Respondent contends that there is no evidence that Walls, De Los Santos, or any other
official of Respondent or WTS even knew what the document was about at the time of the
investigation. However, the document indicated in bold letters on the cover page (which De Los
Santos admitted seeing) that it was from the security manual (which contains PFOs) and
surfaced in an unfair labor practice proceeding (in which a central issue was the assignment of
overtime). Thus, a reasonable person would have inferred that it was a PFO and related to
SPO duties and responsibilities. Further, both De Los Santos and Friend testified that they
eventually learned, at least generally, what the document was about. Although it is not clear
when this occurred, the record reflects that there were conversations between WTS and the
NLRB’s regional office during the relevant period about the document. See Tr. at 34 and 162-
163. In any event, I would reach the same conclusions herein regardless of whether or not the
Respondent knew, at least generally, that the document related to SPO duties and
responsibilities.

JD–26–10
5
10
15
20
25
30
35
40
45
50
9
under the “high 2” FOIA exemption (see fn. 5, supra).9 The rule as communicated was also
generally consistent with WTS’ interest and direction as it addressed only “documents and
materials” (rather than discussions). Moreover, the rule was not new; OUO and other
“sensitive” and “restricted” documents had long been considered “controlled” and/or confidential
(see fn. 2, supra, and discussion below).10 Further, as noted above, Walls interviewed
managers and supervisors as well as employees, and never mentioned Franco or the prior
Board proceeding.11 Finally, there is no evidence that any employee has been disciplined for
violating the rule.
As indicated above, however, a confidentiality rule may also violate Section 8(a)(1)
under Lutheran Heritage if employees would have reasonably construed its language to restrict
protected activity. Here, the Respondent provides security at a nuclear waste facility and its
employees are security protective officers. Further, the terms “sensitive” and “restricted” are
often used when formally designating controlled documents at the facility. See fn. 2, supra.
Thus, on first impression, it might appear that the SPOs would not reasonably assume that
Walls was referring to their personnel records when he referred to “sensitive” or “restricted”
documents, particularly in the absence of any reference during the interviews to employee
records or the prior Board proceeding. See the Board’s discussion and cases cited in Double
Eagle Hotel & Casino, supra, 341 NLRB at 113-115.

9 Friend testified that the only purpose for directing Respondent to conduct the investigation
was “enforcing the directives from the DOE, my customer, to prevent this from happening
again.” Tr. at 163. See also testimony by WTS General Counsel Raeburn Josey, Tr. at 218.
Both Friend and Josey also testified that WTS could terminate Respondent’s contract and/or
seek financial penalties if it failed to comply with the contract or DOE directives and orders that
are “flowed down” through WTS. Tr. at 169 and 218.
10 The General Counsel at least implicitly challenges whether the document was properly
marked as controlled/OUO in the first place. However, the Respondent’s predecessor created
and marked the document, not the Respondent. Further, the complaint does not expressly
attack the procedures and guidelines for marking documents as OUO (which appear to be set
by DOE).
11 Although Walls admitted that “everyone knew that Franco was involved in a lawsuit,” (Tr.
at 201 and 206-207), there is insufficient evidence that the employees were aware that Franco
or some other individual had provided a PFO from the security manual to the General Counsel
in that proceeding. Further, the complaint does not allege that the interviews interfered with the
right of employees to use the Board’s processes. Cf. Jack in the Box Distribution Center
Systems, 339 NLRB 40 (2003). I therefore need not decide in this case whether the
unauthorized release to the General Counsel of such a controlled/OUO document, obtained
from a manual marked as controlled/OUO by the DOE pursuant to the “high 2” FOIA exemption,
constituted protected activity.
JD–26–10
5
10
15
20
25
30
35
40
45
50
10
However, Walls admitted at the hearing that he intended the term “sensitive” in his
questions to be “an encompassing term”, including “any document which might be released
which shouldn’t be released.” Tr. at 194.12 Further, as noted by the General Counsel, both
Walls and De Los Santos acknowledged that employee wage and benefit information is, in fact,
considered “sensitive” to the Respondent to the extent it could be used by its competitors, and
that employee disciplinary records are also “sensitive” and “restricted”. Tr. at 66-69, 149-151,
and 195-196.
Moreover, the employees had previously been advised that this was the Respondent’s
policy. As fully discussed in Judge Brakebusch’s recent decision in the earlier proceeding, since
at least October 2008, the Respondent maintained a provision in its “Restrictive Covenants”
specifically prohibiting both current and former employees from disclosing
personal and/or sensitive information regarding any Security Walls, LLC
employee, with particular emphasis on salary/hourly wage rates, benefits,
promotions, demotions, disciplinary actions, bonuses, or other actions which are
clearly within the authority of the Human Resource Department.13
In short, the Respondent not only considered such information “sensitive,” it had clearly
communicated this to employees in the past. In these circumstances, I find that a
preponderance of the evidence supports a conclusion that the employees would have
reasonably interpreted the rule to restrict copying and distribution of employee information
contained in personnel records, as well as other Respondent and/or DOE-“sensitive” or
“restricted” information. See Longs Drug Stores California, 347 NLRB 1 (2006)(finding
employer’s general confidentiality provision unlawful in light of another, more specific
confidentiality provision and the testimony of employer’s human resource manager that wage
rates were confidential information). Accordingly, for this limited reason alone, I find that the
confidentiality rule Walls communicated to employees at the August 2009 interviews interfered
with their Section 7 rights under the test set forth in Lutheran Heritage.

12 The General Counsel also cites Walls’ notes, which indicate that two employees
mentioned at the end of their interviews that Franco had requested a copy of a job description
and a disciplinary write up. GC Exhs. 6 and 7. However, according to De Los Santos, an
SPO’s job description is considered an OUO document. Tr. at 151. Further, the relevant test
set forth in Lutheran Heritage is an objective one. Accordingly, I have not given the two
employee’s subjective responses any weight in evaluating the rule. Cf. Multi-Ad Services, 331
NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001); and Miami Systems Corp., 320
NLRB 71 fn. 4 (1995), enfd. in relevant part and remanded 111 F.3d 1284 (6th Cir.
1997)(employees’ subjective responses to alleged interrogation not relevant).
13 This fact appears to have been undisputed; in any event, I take judicial notice of it. See
generally Detroit Newspapers, 330 NLRB 505, 506 (2000); and Grand Rapids Press of Booth
Newspapers, 327 NLRB 393, 394-395 (1998), enfd. mem. 215 F.3d 1327 (6th Cir. 2000).
JD–26–10
5
10
15
20
25
30
35
40
45
50
11
Finally, I find that the Respondent has failed to articulate or establish an overriding
legitimate and substantial business justification for such a broad rule.14 The rule as
communicated was not limited to documents contained in files to which employees generally
had no right of access or possession. Rather, given the previously announced policy set forth in
the “Restrictive Covenants,” it could reasonably be interpreted by employees to prohibit copying
and distributing of any documents relating to wages, hours, and other terms and conditions of
employment, even if properly in their own possession or voluntarily and properly provided to
them by other employees. Further, there is no evidence that the Respondent assured
employees, either orally or in writing, that its confidentiality rule did not prohibit disclosure of
such documents to third persons other than its competitors, such as a union or Board agent. Cf.
Carney Hospital, 350 NLRB 627, 644 (2007)(employer’s confidentiality rule was unlawful, as it
could reasonably be interpreted to include information coworkers voluntarily divulged to each
other, but was not unlawful as subsequently modified because the modification specifically
stated that employees were not prohibited from discussing terms and conditions of employment
in an appropriate manner); Biggs Foods, 347 NLRB 425 (2006)(employer’s confidentiality rule
prohibiting disclosure of salaries “to anyone outside the company” was unlawful as it could
reasonably be interpreted to include disclosures to union representatives); Mobile Exploration &
Producing U.S., Inc., supra (employer failed to show sufficient business justification for applying
confidentiality policy to prohibit employees from disseminating information to other employees
as opposed to competitors); IBM, 265 NLRB 638 (1982)(employer established business
justification for discharging employee pursuant to confidentiality rule where employee received
the confidential documents anonymously and not in the normal course of employment); and
Texas Instruments Inc., 637 F.2d 822 (1st Cir. 1981), denying enf. of 237 NLRB 253 (1980)
(finding, in similar circumstances, that employees’ distribution of information in documents was
not protected).
Accordingly, for all the foregoing reasons, I find that the rule as communicated to
employees was overbroad, i.e. infringed on employee Section 7 rights well beyond any mandate
by DOE or Respondent’s legitimate and substantial confidentiality interests, and therefore
violated Section 8(a)(1).15
2. Alleged coercive interrogation of employees
Having found that the employees would have reasonably interpreted the confidentiality
rule to prohibit protected concerted activity, I find that the related questions Walls asked
employees about whether they or any other employee had violated the rule had a reasonable
tendency to restrain protected concerted activity, particularly since Walls was an owner of the
company. The questions therefore constituted unlawful interrogation. See Trump Marina Assoc.
LLC, 354 NLRB No. 123 (Dec. 31, 2009) and cases cited therein.

14 This issue is not specifically addressed in the Respondent’s posthearing brief, which
argues only that the General Counsel failed to establish a prima facie case.
15 This conclusion is consistent with Judge Brakebusch’s legal conclusion in the earlier
proceeding with respect to the confidentiality rule in the “Restrictive Covenants.” However, it is
not dependent on it. Cf. Longs Drugs Stores California, supra (relying in part on a specific
confidentiality provision in finding a general provision unlawful, even though the specific
provision was not separately alleged to be unlawful).
JD–26–10
5
10
15
20
25
30
35
40
45
50
12
3. Alleged solicitation to monitor other employees
As indicated above, the last allegation alleges, in essence, that Walls also solicited
employees to monitor (i.e. “spy”) and report on other employees protected concerted activities.
See Tr. at 16 (GC’s opening statement). However, his questions contained no such express
solicitation; indeed, they were all directed at past rather than future conduct. Further, there is no
record evidence that the Respondent had previously communicated to employees that they
were required, as part of their job duties, to monitor each other for violations of Respondent’s
confidentiality or other rules. Thus, the alleged solicitation also cannot be inferred from all the
circumstances. Finally, no supporting case law has been cited for finding such a violation on
the same or similar facts. Accordingly, I find that the General Counsel has failed to prove this
alleged violation.
Conclusions of Law
1. By orally promulgating an overbroad confidentiality rule prohibiting employees, without
qualification or exception, from copying, removing, or distributing to “unauthorized” persons any
“sensitive” or “restricted” documents or materials, which would reasonably be interpreted by its
employees to include employee personnel records that discuss salary, wage rates, benefits,
promotions, demotions, disciplinary actions, bonuses, and other terms and conditions of
employment, 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 interrogating employees about whether they or fellow employees have copied,
removed, or distributed any “sensitive” or “restricted” documents or materials that contain
information on salaries, wage rates, benefits, promotions, demotions, disciplinary actions,
bonuses, and other terms and conditions of employment, 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.
3. The Respondent did not solicit employees to monitor and report on other employees’
protected concerted activities in violation of the Act.
Remedy
Having engaged in certain unfair labor practices, the Respondent must be ordered to
cease and desist and to take certain affirmative action designed to effectuate the policies of the
Act. Accordingly, on the above findings of fact and conclusions of law, and the entire record, I
issue the following recommended16
ORDER
The Respondent, Security Walls, LLC, Carlsbad, New Mexico, its officers, agents,
successors, and assigns, shall

16 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 purposes.
JD–26–10
5
10
15
20
25
30
35
40
45
50
13
1. Cease and desist from
(a) Orally promulgating an overbroad confidentiality rule that prohibits
employees, without qualification or exception, from copying, removing, or distributing to
“unauthorized” persons any “sensitive” or “restricted” documents or materials that contain
information on salaries, wage rates, benefits, promotions, demotions, disciplinary actions,
bonuses, and other terms and conditions of employment.
(b) Coercively interrogating employees about whether they or fellow employees
have copied, removed, or distributed to “unauthorized” persons any “sensitive” or “restricted”
documents or materials that contain information on salaries, wage rates, benefits, promotions,
demotions, disciplinary actions, bonuses, and other terms and conditions of employment.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the overbroad confidentiality rule it orally communicated to
employees at the August 2009 interviews.
(b) Within 14 days after service by the Region, post at its facility in Carlsbad,
New Mexico, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
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 August 5, 2009.
(c) 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.
Dated, Washington, D.C. April 21, 2010
__________________________________
Jeffrey D. Wedekind
Administrative Law Judge

17 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–26–10
Carlsbad, NM
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT orally promulgate an overbroad confidentiality rule that prohibits you, without
qualification or exception, from copying, removing, or distributing to “unauthorized” persons any
“sensitive” or “restricted” documents or materials that contain information on salaries, wage
rates, benefits, promotions, demotions, disciplinary actions, bonuses, and other terms and
conditions of employment.
WE WILL NOT coercively interrogate you about whether you or your fellow employees have
copied, removed, or distributed to “unauthorized” persons any “sensitive” or “restricted”
documents or materials that contain information on salaries, wage rates, benefits, promotions,
demotions, disciplinary actions, bonuses, and other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the overbroad confidentiality rule we orally communicated to you during the
interviews we conducted in August 2009.
SECURITY WALLS, LLC
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
JD–26–10
Carlsbad, NM
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 602-640-2146.