United Government Security of America International and its Local 129 (Akal Security)

National Labor Relations Board - Board Decisions

Oct 4, 2018

367 NLRB No. 5 (N.L.R.B. 2018)

367 NLRB No. 5
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
United Government Security Officers of America In-
ternational and its Local 129 and Joseph Antho-
ny Farrell and David Wehrer. Cases 04–CB–
192246, 04–CB–207347, and 04–CB–208578
October 4, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On June 4, 2018, Administrative Law Judge Robert A.
Giannasi issued the attached decision. The Respondents
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondents
filed a reply brief. In addition, the General Counsel filed
limited cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that Respondent Local
129 violated Sec. 8(b)(2) and (1)(A) by attempting to cause the Em-
ployer to discriminate against employee Joseph Farrell because of his
union and protected activities. There are also no exceptions to the
judge’s dismissal of allegations that the Respondents violated Sec.
8(b)(2) and (1)(A) by attempting to cause the Employer to discriminate
against employee David Wehrer because of his union and protected
activities, and that the Respondents’ reliance on the vote of Local 129’s
membership in refusing to restore Farrell’s seniority independently
violated the Respondents’ duty of fair representation.
The judge stated that the Respondents did not raise their 10(b) de-
fense until they submitted their posthearing brief. In fact, the Respond-
ents included a 10(b) defense in their initial answer to the complaint.
However, that defense was insufficiently specific and was not litigated
during the hearing. As such, we agree with the judge’s finding that the
Respondents waived the defense. See, e.g., Atelier Condominium, 361
NLRB 966, 1001 (2014), enfd. mem. 653 Fed.Appx. 62 (2d Cir. 2016).
Even if we were to find that the Respondents did not waive their 10(b)
defense, we would adopt the judge’s alternative finding that the charge
was timely filed, as the Respondents’ denial of Farrell’s seniority in
October 2016 was discrete from the Respondents’ failure to address the
seniority issue in settling Farrell’s earlier grievance.
We correct the judge’s statement that it took almost a year for Farrell
to be medically cleared for work after his September 2015 grievance
settlement. The record establishes that Farrell was medically cleared as
of May 2015. We find that this error did not affect the judge’s analysis,
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
A. Respondent United Government Security Officers
of America International, East Wareham, Massachusetts,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Arbitrarily and discriminatorily refusing to process
a grievance with respect to employee Joseph Farrell’s
past union seniority and/or failing to grant him such past
seniority on its own with the approval of the Employer.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately grant Joseph Farrell’s past union sen-
iority to the date of his original hire, and, to the extent
necessary, promptly request Farrell’s employer to concur
with that grant of past seniority.
(b) Make Joseph Farrell whole for any loss of pay
and/or benefits he may have suffered as a result of the
unlawful denial of his past union seniority, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Reimburse Joseph Farrell for the reasonable legal
fees expended in connection with his use of a private
attorney from the date of his engagement of such attor-
ney to the date he filed his first charge in this case.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-

as the judge correctly found that Farrell did not return to work for al-
most a year after the settlement.
2 We amend the judge’s remedy in two respects. First, backpay for
the denial of Joseph Farrell’s seniority shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971). The Ogle Protection formula applies where, as
here, the Board is remedying “a violation of the Act which does not
involve cessation of employment status or interim earnings that would
in the course of time reduce backpay.” Id. at 683; see also Pepsi Amer-
ica, Inc., 339 NLRB 986, 986 fn. 2 (2003). Second, the judge provided
both tax compensation and social security reporting remedies, but only
the tax compensation remedy is appropriate here. See Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101, 103 fn. 12 (2014)
(“[B]ackpay owed by a respondent that has never been an employer of
the discriminatee is not considered wages for FICA purposes, so there
is no withholding obligation and no employer contribution is paya-
ble.”).
We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language for the violations found and substi-
tute new notices to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its union office in Scranton, Pennsylvania, copies of the
attached notice marked “Appendix A.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
and members are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
members by such means. Reasonable steps shall be tak-
en by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Within 14 days after service by the Region, deliver
to the Regional Director for Region 4 signed copies of
the notice in sufficient number for posting by Paragon
Systems, Inc. at its Scranton, Pennsylvania facility, if it
wishes, in all places where notices to employees are cus-
tomarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. Respondent United Government Security Officers
of America Local 129, Scranton, Pennsylvania, its offic-
ers, agents, and representatives, shall
1. Cease and desist from
(a) Arbitrarily and discriminatorily refusing to process
a grievance with respect to employee Joseph Farrell’s
past union seniority and/or failing to grant him such past
seniority on its own with the approval of the Employer.
(b) Attempting to cause Joseph Farrell’s employer to
discriminate against him because of his union and pro-
tected concerted activities.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

3 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.”
(a) Immediately grant Joseph Farrell’s past union sen-
iority to the date of his original hire, and, to the extent
necessary, promptly request Farrell’s employer to concur
with that grant of past seniority.
(b) Make Joseph Farrell whole for any loss of pay
and/or benefits he may have suffered as a result of the
unlawful denial of his past union seniority, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Reimburse Joseph Farrell for the reasonable legal
fees expended in connection with his use of a private
attorney from the date of his engagement of such attor-
ney to the date he filed his first charge in this case.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its union office in Scranton, Pennsylvania, copies of the
attached notice marked “Appendix B.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
and members are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
members by such means. Reasonable steps shall be tak-
en by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Within 14 days after service by the Region, deliver
to the Regional Director for Region 4 signed copies of
the notice in sufficient number for posting by Paragon
Systems, Inc. at its Scranton, Pennsylvania facility, if it
wishes, in all places where notices to employees are cus-
tomarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the

4 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.”
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 3
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 4, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT arbitrarily or discriminatorily refuse to
process grievances with respect to your past union sen-
iority and/or fail to grant you such seniority on our own,
with the approval of your employer.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL immediately grant Joseph Farrell’s past un-
ion seniority to the date of his original hire and, to the
extent necessary, request Joseph Farrell’s employer to
concur.
WE WILL make Joseph Farrell whole for any loss of
pay and/or benefits he may have suffered because of our
unlawful denial of his past union seniority, with interest.
WE WILL reimburse Joseph Farrell for reasonable legal
fees he expended because of his need to hire a private
attorney to help resolve his seniority issue.
UNITED STATES GOVERNMENT SECURITY
OFFICERS OF AMERICA INTERNATIONAL AND ITS
LOCAL 129
The Board’s decision can be found at
https://www.nlrb.gov/case/04-CB-192246 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT arbitrarily or discriminatorily refuse to
process grievances with respect to your past union sen-
iority and/or fail to grant you such seniority on our own,
with the approval of your employer.
WE WILL NOT attempt to cause Joseph Farrell’s em-
ployer to discriminate against him for exercising his
rights under the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL immediately grant Joseph Farrell’s past un-
ion seniority to the date of his original hire and, to the
extent necessary, request Joseph Farrell’s employer to
concur.
WE WILL make Joseph Farrell whole for any loss of
pay and/or benefits he may have suffered because of our
unlawful denial of his past union seniority, with interest.
WE WILL reimburse Joseph Farrell for reasonable legal
fees he expended because of his need to hire a private
attorney to help resolve his seniority issue.
LOCAL 129 OF THE UNITED STATES
GOVERNMENT SECURITY OFFFICERS OF
AMERICA INTERNATIONAL
The Board’s decision can be found at
https://www.nlrb.gov/case/04-CB-192246 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Patrice Tisdale, Esq., for the General Counsel.
Alan J. McDonald, Esq., Southborough, Massachusetts, for the
Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. The hear-
ing in this case opened on March 5, 2018, in Philadelphia,
Pennsylvania, and concluded on April 30, 2018, by telephone.
The consolidated complaint, as amended, alleges that Respond-
ents (the International and Local 129) violated Section
8(b)(1)(A) of the Act by violating their duty of fair representa-
tion in the failure to restore the past seniority of Charging Party
Joseph Farrell upon his return to work from a medical leave of
absence. The consolidated complaint also alleges that Re-
spondent Local 129 complained about Farrell and Charging
Party David Wehrer to their employer in an attempt to cause
their employer to discriminate against them for engaging in
protected union and concerted activity and in violation of Local
129’s duty of fair representation, thus violating Section 8(b)(2)
and (1)(A) of the Act. The Respondents filed answers denying
the essential allegations in the complaint.1
The General Counsel and Respondents filed post-hearing
briefs, which I have read and considered. Based on those briefs
and the entire record in the case, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
It is admitted that Respondents are labor organizations with-
in the meaning of Section 2(5) of the Act. It is also admitted
that the employers named in this matter, Akal Security, Inc.
(Akal) and Paragon Systems, Inc. (Paragon), are employers
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The Facts
Background
For a number of years, employers have provided court secu-
rity officers at the William J. Nealton Federal Building and
United States Courthouse in Scranton, Pennsylvania under a
contract with the United States Marshals Service. Most recent-
ly the employers of those officers have been Akal and Paragon,
whose employees were represented by the Respondents in the
following unit:
All full-time and shared position Federal Court Security Of-
ficers (CSOs),Federal Special Security Officers (SSOs), Lead
Federal Court Security Officers (LCSOs) and Lead Federal
Special Security Officers (LSSOs) employed by Employer in
the 3rd Circuit consisting of UGSOA Local 129, in the Middle
District of the State of Pennsylvania in the City of Scranton,
excluding all other employees including office clerical em-
ployees and professional employees as defined in the National
Labor Relations Act.
Recognition of the Respondents in the above unit of some 25
security officers has been embodied in successive collective
bargaining agreements between them and the relevant employ-
ers covering the terms and conditions of employment of the
security officers, including a grievance and arbitration provi-
sion. At all material times until November 30, 2017, the
agreement was with Akal; and, at all material times, since De-
cember 1, 2017, the agreement was with Paragon. The agree-
ment lists both Respondents, the International and Local 129, as
parties to the most recent agreement, which is effective from
October 1, 2015 through September 30, 2018. Jt. Exh. 1.2

1 During the telephone session, the parties submitted a stipulation
(Jt. Exh. 12) that referred to a number of joint exhibits which were
received in evidence. Although both parties agreed to the authenticity
of Jt. Exhs. 3 and 4, Respondents objected to their admissibility on the
grounds that they contained substantial hearsay and were irrelevant. I
agree with Respondents on Jt. Exh 4 and reject that exhibit, but I will
admit Jt. Exh. 3 because it is a business record of an investigation with
relevance to this case .
2 It was stipulated that, although this most recent agreement names
Akal as the employer, it also applies to Paragon. Tr. 237. Because
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 5
At all material times, Jeffrey Miller has been the Internation-
al Director and Divisional Vice President for the Court Security
Officers Program for Respondent International and an admitted
agent of Respondent International within the meaning of Sec-
tion 2(13) of the Act. Also, at all material times since 2014,
Security Officer Daniel Wigley has been the president of Re-
spondent Local 129 and Security Officer Robert Reuther has
been the vice president of Respondent Local 129. Both are
admitted agents of Respondent Local 129 within the meaning
of Section 2(13) of the Act.
Wigley and Reuther were elected to their union offices in
2014 and reelected each year since. Tr. 210–212. Prior to
2014, Security Officer Joseph Farrell was an officer of Local
129, serving as secretary-treasurer for three years. Tr. 77–
78,111. Security Officer Thomas Sivahop was also an officer of
Local 129, serving as vice-president until 2014. Tr. 137–138.
It appears that there was some animosity between the old and
the new officers of Local 129. While Farrell and Sivahop were
officers of Local 129, they were instrumental in processing a
grievance with the Employer over the reprimand of a group of
security officers who were allegedly involved in time fraud.
Wigley and Reuther were among the employees named as of-
fenders. The grievance was rejected by the Employer because it
was filed out of time. The International was consulted and de-
cided not to go forward on the matter. At some point, the local
union agreed to financially aid the employees to process the
grievance or complain about the reprimands, then changed that
decision. Tr. 137–143, 77–80. At the time, Wigley and Reu-
ther complained to Sivahop and Farrell about the failure to
support them in the grievance. Farrell’s uncontradicted testi-
mony is that both Wigley and Reuther approached him about
the matter and Wigley was particularly angry at him. Tr. 79-
80. Sivahop’s uncontradicted testimony is that Wigley com-
plained to him at the time and angrily spoke disparagingly of
Farrell; he also testified, again without contradiction, that he
and Reuther have not spoken since he denied financial support
for the grievance. The time fraud issue was finally put to rest
when Sivahop later confirmed with the Employer’s representa-
tive in Scranton that the reprimands were no longer in the Em-
ployer’s files. Tr. 142–143.
The animosity described above carried over to the present
dispute. The major issue in this case involves the treatment,
with respect to past seniority, of Security Officers Robert Reu-
ther and Joseph Farrell, when they returned to work after com-
ing off medical leave. As set forth below, the circumstances
and the governing seniority language (Tr. 189) were the same
in both situations. But the two security officers were treated
differently with respect to the grant of past seniority.
Rules on Security Officers Returned to Employment After Re-
moval from the Contract and Their Seniority
The contract between the Employer and the U.S. Marshals
Service provides for the removal of a security officer from the
contract. The Employer’s Scranton District Superintendent,
George Kamage, gave the following credible and uncontradict-

some of the events in this case occurred when Akal was the employer
and some when Paragon was the employer, I shall sometimes refer to
one or the other by the generic term, the Employer.
ed testimony as to how the Employer handles such situations.
The Employer removes a security officer from the U.S. Mar-
shals contract in Scranton for a number of reasons, not all of
them due to discharge or permanent termination. Removal
from the contract could be caused by a medical leave of ab-
sence such as a stint on workmen’s compensation. Someone is
then hired to replace that person. The Employer submits a U.S.
Marshals Service form, titled Court Security Staffing Notifica-
tion, to the Service when this is done. The form asks for the
name of the security officer who is being replaced, the reason
for the replacement, whether the position is permanent or tem-
porary, and the name of the replacement officer. GC Exh. 2, Tr.
18-20. Not all security officers who are removed under this
procedure have the opportunity to return to their position. One
group, however, is permitted to return. A person who is re-
moved from the contract because of a medical leave of absence
or workmen’s compensation is entitled to reapply for the posi-
tion once the condition for which he or she was removed has
been rectified. Tr. 21, 48–49, GC Exh. 7.
There are two kinds of seniority at the Scranton location:
One is union seniority, which is used for job selection and bid-
ding for particular jobs, including hours worked. The other is
company seniority, which is used for vacations and benefits.
The collective bargaining agreement contains a provision on
union seniority, but the Employer leaves union seniority totally
up to the Respondents. Tr. 17, 23, GC Exhs. 20 and 29. The
contractual seniority provision (Jt. Exh. 1, art. 2) provides that
an employee’s seniority “shall be” terminated for any of the
following reasons (sec. 2.2):
A. the Employee quits or retires;
B. the Employee is discharged for just cause;
C. a settlement with the Employee has been made for total
disability, or for any other reason if the settlement waives
further employment rights with the Employer;
D. the Employee is laid off for a continuous period of one
hundred eighty (180) calendar days;
E. the Employee is permanently transferred out of the bar-
gaining unit.
The seniority provision also provides that union seniority “shall
be” reinstated for any of the following reasons (Section 2.3):
A. An Employee returned to work after overturning a medi-
cal disqualification shall regain their seniority to the original
date of hire; and
B. An Employee returned to work after overturning a disci-
pline termination shall regain their seniority back to original
date of hire.
Reuther’s Release and Return from Medical Leave, Later Re-
gaining His Original Seniority
Robert Reuther was first hired as a security officer at the
Scranton location by a predecessor employer, MVM, Inc., on
November 8, 2004. He worked until injured in a fall on May 7,
2005. He was then placed on workmen’s compensation and
thereafter released without prejudice effective June 8, 2008
because he did not meet the physical standard required for the
position. G.C. Exhs. 8 and 23. In a July 25, 2008 letter from
an MMV official, Reuther was told that this did “not change the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
benefits you are receiving under Worker’s Compensation. Once
you are able to meet the physical standards of the position, you
are encouraged to reapply.” GC Exh. 23. Reuther was rehired
in March of 2012 by District Superintendent George Kamage.
Tr. 16–17.
When he returned to work in Scranton, Reuther was appar-
ently listed on the seniority list as having seniority from the
date of his rehire in March of 2012. In an undated letter from
Reuther to Respondent International that came to the attention
of International Representative Miller, Reuther requested resto-
ration of his past seniority. The letter states that he was cleared
for duty by his orthopedic surgeon on January 12, 2012, and
was rehired on March 30, 2012. In the letter, Reuther asks that
his seniority be restored to his original hire date because he was
injured in the performance of his duties as a security officer and
kept in touch with his union representatives and his superiors in
the interim. GC Exh. 8, Tr. 70–71.
In February of 2013, after receiving Reuther’s letter, Interna-
tional Representative Jeffrey Miller had an email exchange
with Maureen Dolan of Akal about Reuther’s union seniority
and company seniority. Miller sought past seniority for Reu-
ther to his original hire date in 2004, stating that Reuther should
never have been “fired” by Akal because he was on workmen’s
compensation due to an on-the-job injury. In an email re-
sponse, Dolan stated as follows: “If the union wants to date his
seniority back to 2004, the Company would not object. But for
the purpose of benefits, he is a new hire as of March 30, 2012.”
GC Exh. 29. Sometime in early March of 2013, District Super-
intendent Kamage received a telephone call from one of his
superiors and was told about Reuther’s letter discussed above.
He was asked whether he had any objection to the restoration of
Reuther’s past seniority. He replied he did not object because,
as he testified, union seniority is “totally up to the Union.” As
a result, Reuther’s union seniority was restored back to 2004,
his original hire date. Tr. 16–17.
It appears that there was at least one grievance filed over the
decision to grant Reuther his past union seniority. One of the
security officers, Robert Snell, whose seniority was adversely
affected by the decision granting Reuther’s past seniority, filed
a grievance with District Superintendent Kamage protesting
that decision. Kamage rejected the grievance, because, as he
testified, union seniority was up to Respondents and was not
the Employer’s “business,” but he was unsure how the matter
was eventually resolved. Tr. 17–18, 59. In the interim, Inter-
national Representative Jeffrey Miller resolved the issue of
Reuther’s past seniority in discussions with the Employer, as
mentioned above.
In an exchange of e-mails in March of 2013 that are part of
GC Exh. 16, discussed later in this decision, Farrell, who was
an officer of Local 129 and handling Snell’s grievance, and
perhaps others, at the time, vigorously protested Miller’s reso-
lution of Reuther’s past seniority. In a lengthy discourse citing
and discussing relevant seniority and other provisions of the
collective bargaining agreement, Farrell asserted that the grant
of Reuther’s past seniority was contrary to the bargaining
agreement and unfair to other security officers in the unit. He
also told Miller that his resolution of the matter placed a burden
on the grievants going forward and that the matter had not been
discussed or cleared with local union officials. Nothing further
appears in the record concerning the resolution of the Snell
grievance or any other grievance that may have been pending at
the time, so I assume that it and any other grievances were
dropped in accordance with Miller’s grant of past union seniori-
ty to Reuther.
The parties entered into a stipulation that contained text mes-
sage exchanges between Reuther and Miller in February and
March of 2013 about the restoration of Reuther’s past union
seniority. The exchanges include Reuther’s concerns about
Farrell’s grievance over the restoration of his past union senior-
ity and Reuther’s view that the contractual seniority provision
supported Miller’s decision to grant such past union seniority.
Jt. Exhs. 8 and 12.
Farrell’s Release and Efforts to Return with his
Original Seniority
Security Officer Joseph Farrell was first hired by the Em-
ployer on October 10, 2008. As of March 21, 2014 he went on
a medical leave of absence related to a workmen’s compensa-
tion claim. In a January 14, 2015 letter from the Employer,
Farrell was told that his medical qualification had lapsed be-
cause his last annual medical examination was taken on No-
vember 20, 2013. He was removed from the Marshals Service
contract with the notation that, once he was again cleared for
work and a position was available, he could reapply. R. Exh. 1.
Shortly thereafter, on January 20, 2015, a copy of the Mar-
shals Service form discussed above was processed for Farrell
by District Superintendent Kamage, specifically noting that
Farrell was removed from the contract because he was placed
on workmen’s compensation. GC Exh. 2. It is clear that Farrell
was not considered terminated by the Employer. As shown
above, according to District Superintendent Kamage’s testimo-
ny about those removed from the contract due to workmen’s
compensation, as was Farrell, those employees were entitled to
reapply when they became physically able to return. Akal also
separately confirmed that Farrell’s removal from the contract
did not mean that he was terminated and he remained an em-
ployee. See Akal’s letter of February 17, 2015, discussed be-
low, and a December 2, 2016 email sent to Farrell’s private
counsel, in which Akal’s counsel stated that Farrell “was not
terminated by Akal Security. He was removed from the con-
tract for a period of time due to an extended medical leave.”
GC Exh. 20.3
Nor was Farrell’s continued employment affected by his
failure to take his annual physical in November 2014 while he
was on workmen’s compensation. Uncontradicted and credible
testimony shows that Farrell specifically asked about his physi-
cal at the time and District Superintendent Kamage specifically
told Farrell that he was excused from taking the physical while
he was on workmen’s compensation. Kamage said there would

3 The email was in response to a November 7, 2016 letter sent by
Farrell’s private attorney to representatives of Respondents and the
Employer requesting that the Respondents initiate a grievance and
arbitration proceeding to restore Farrell’s past seniority. The email
follows the letter, which is the first page of GC Exh. 20. The exhibit is
discussed in greater detail later in this decision.
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 7
be no physical at that time. Tr. 53–58, 68, 89. 4
Despite the above, at the time of Farrell’s removal from the
contract, Farrell’s status was not clear, at least to Farrell and
Respondents. Upon his receipt of the removal letter from the
Employer, Farrell immediately contacted International Repre-
sentative Tim Crume. Tr. 81. Respondents thereafter filed a
grievance on this matter. The grievance, dated January 16,
2015, was titled, “Termination without just cause.” GC Exh. 9.
See also R. Exh. 2. Akal denied the grievance in a February 17,
2015 letter, stating that the grievance was denied because the
Employer considered the matter a “lapsed qualification” case
that was a matter of management rights and not grievable under
the collective bargaining agreement. The Employer’s letter
also stated that Farrell was “currently an employee of Akal
Security” and could reapply to return to the Marshals Service
contract. GC Exh. 10.
The grievance continued to be processed, however, and, on
March 11, 2015, International Representative Crume submitted
a request for arbitration. GC Exh. 24. On the next day, March
12, 2015, Crume also asked for information from the Employer
regarding the removal. GC Exh. 25.
During the next several months, Farrell and Crume ex-
changed e-mails about the grievance and arbitration. Tr. 85–
88. At this time, Farrell was still on workmen’s compensation
and he was concerned that the Employer would not pay for a
physical while he was on workmen’s compensation. In an
April 28, 2015 email to Crume, Farrell stated that he wanted
Respondent to address not only reemployment issues, but also
workmen’s compensation issues. He understood that he would
have to reapply when he was able to return to work, but he was
concerned that the Employer would offer to bring him back on
limited duty, to which he objected. Farrell also mentioned that
the local union leadership harbored animus against him because
of his actions when he was a former local union officer. GC
Exh. 11.
On May 13, 2015, Farrell sent an email to Crume suggesting
he was amenable to a settlement on the following conditions:
1. When his condition improves, he would reapply and be reap-
pointed to the first vacancy; 2. His seniority would be reinstated
and considered overturning a medical qualification; and 3. He
would meet the qualification if he were able to return in 3
years. Farrell stated that the only thing he wished to preserve
were “rights similar to those given to Robert Reuther, who
received a workers compensation settlement after an alleged
workers compensation injury, and was able to return to the
position upon medical clearance with total seniority and able to
jump over all applicants.” GC Exh. 12. Farrell testified that, at
this time, he wanted to make sure that he received his back
seniority just as Reuther did. He emphasized that he was famil-
iar with Reuther’s seniority determination because he, Farrell,
was a union officer at the time and was involved in that matter.
Crume did not respond to Farrell’s concerns about his past
seniority. Tr. 86–88.

4 At the time the requirement was that security officers have a phys-
ical every year; at the time of the hearing that had been changed and the
physical is now required every 2 years. Tr. 50, 168.
Thereafter, the Respondents and the Employer entered into
settlement discussions. Tr. 85, 88; and see GC Exhs. 26 and 27.
On September 9, 2015, Respondent International’s president,
Desiree Sullivan, sent an email to Akal Representative Maureen
Dolan with an attached settlement agreement for her signature.
The settlement agreement referenced the arbitration which had
been docketed for hearing by the Federal Mediation and Con-
ciliation Service. In response, Dolan made redline changes in
the draft agreement and sent it back to Sullivan. GC Exh. 28.
On September 16, 2015, Crume sent Farrell a copy of the
signed settlement agreement between Akal and Respondents,
dated September 9, 2015. The final signed agreement included
the changes suggested by Dolan. But it contained nothing about
Farrell’s past seniority. G.C. Exh.13, Tr. 89.
On the same day, Farrell responded to Crume by email stat-
ing that he objected to the settlement because he was not con-
sulted beforehand, and it did not include immediate reinstate-
ment or a favorable resolution of his past seniority. He men-
tioned his past discussions with Crume about being treated
similar to Reuther with respect to past seniority and asked if
there was any way he could appeal the matter to the Interna-
tional. Crume did not respond, but, in an email the next day,
counsel for the International did. Tr. 90, GC Exh. 14. In that
email to Farrell, International Counsel Robert Kapitan stated
that Respondents could not advocate for Farrell’s immediate
reinstatement without a medical clearance, but said nothing
about the past seniority issue. He also said that there was noth-
ing more that Respondents could do for Farrell and that there
was no further appeals process. There was another exchange of
emails between Farrell and Kapitan reflecting the end of the
arbitration matter. GC Exh. 14.5
Respondents Refuse to Restore Farrell’s Original Seniority
It took almost another year after the events set forth above
for Farrell to obtain a medical clearance to return to work and
for an open position to become available. Tr. 180. In the
meantime, at least through March of 2016, Respondents urged
the Employer to bring Farrell back. GC Exhs. 5–7, Tr. 182–
184.
In anticipation of Farrell’s return, sometime in July or Au-
gust 2016, Kamage posted a new seniority list at the Scranton
facility, apparently reflecting Farrell’s original seniority. Local
129 Officers Reuther and Wigley approached Kamage and told
him he could not post that list because Farrell was not getting
his past seniority back. Kamage questioned that statement
because he said that Reuther received his past seniority. Either
Reuther or Wigley replied that Farrell’s situation was “differ-
ent” and that they had checked with Respondent International,
which agreed Farrell would not get his seniority back. Kamage
then dropped the matter because union seniority was “union
business.” He did not restore Farrell’s past seniority because he

5 The transcript at page 90 erroneously reflects that Farrell testified
that he was satisfied with the settlement. I grant the General Counsel’s
motion to correct that part of the transcript to reflect that Farrell testi-
fied he was “dissatisfied” with the settlement. The Respondents agree
to the correction and, indeed, the correction is obvious given the con-
text of the rest of Farrell’s testimony and GC Exh. 14.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
“was told by the Union not to.” Tr. 21–23.6
On October 12, 2016, on the advice of International Repre-
sentative Miller, Local 129 officials decided to take a vote on
whether to restore Farrell’s past seniority. Tr. 187–188, 214–
215. According to Local 129 President Wigley, “we had to
decide where [Farrell] falls in seniority.” Tr. 215. Wigley
testified that the notification and ramifications of the vote were
not announced in writing, but only by word of mouth. He also
testified that, in his view, the ramifications included a possible
change of the seniority provision of the collective bargaining
agreement. Tr. 215–216. The ballot was a simple piece of
paper that stated, “Reinstate Seniority for Joe Farrell,” followed
by a choice of “yea” or nay.” The nays prevailed. R. Exh. 8,
Tr. 216–217.7
The Respondents conceded that no similar vote was taken
when Reuther’s seniority was restored. See Tr. 95–97, 163,
188.
Farrell’s Return to Work and Continued Efforts to Restore
his Seniority
On October 13, 2016, Farrell, who was a lead security officer
in his prior stint with the Employer (Tr. 75-76), returned to
work as a regular security officer. Tr. 22, 91, G.C. Exh. 20. On
an undetermined date in 2014, but after August 21, 2014, Far-
rell was number 14 on the seniority list. Because of the deci-
sions made about his union seniority by Respondents, when
Farrell returned, he was dead last on the seniority list at number
23. Jt. Exhs. 9, 10 and 12. As a consequence, he now works
fewer hours and is classified as a “shared-time or part-time

6 The above is based on the credible and uncontradicted testimony
of Kamage.
7 Reuther testified that the ballot included a statement that the col-
lective bargaining agreement needed to be changed and that there was a
document in the room where the vote took place explaining why the
vote was being taken. That testimony was contrary to Reuther’s pre-
trial affidavit. Tr. 156–161. Indeed, it is clear that the ballot, which is
in evidence, did not contain anything about changing the bargaining
agreement. And Reuther’s testimony about the explanatory document
was contrary to that of Wigley, mentioned above, and two other securi-
ty guards who testified about the matter. Tr. 225–228. Thus, I discredit
Reuther’s testimony in this respect. Despite his brief appearance on the
witness stand, I found Reuther a thoroughly unreliable witness and I
cannot credit any of his testimony in this case unless it constitutes an
admission against interest.
Although Wigley testified he told employees that the collective bar-
gaining agreement needed to be changed if Farrell was given his past
seniority, Wigley admitted he did not speak to all the security officers
about this. His testimony was that, if someone asked, he told them that
the issue was not that simple because the collective bargaining agree-
ment might have to be changed. Tr. 215–216. Moreover, three differ-
ent security officers credibly testified that they were not told of any
change to the bargaining agreement in connection with the vote. Tr.
151–152, 225–228. In these circumstances, as well as the lack of doc-
umentary explanation or explicit language on the ballot, I am unable to
find that the voters were fully informed of the ramifications on the
bargaining agreement of the Farrell seniority vote. I also find that
Wigley was expressing his own view of the possible ramifications on
the bargaining agreement. In any event, as I find and explain later in
this decision, the grant of past seniority for Farrell did not require a
change in the bargaining agreement.
employee.” Tr. 73–74, 76, 91.
Upon his return to work, Farrell was notified of the vote by
Local 129 members to deny his past seniority. He was very
upset and protested the denial of his past seniority to District
Superintendent Kamage and to Local 129 President Wigley,
specifically mentioning to Wigley the prior grant of past senior-
ity to Reuther. He also called International Representative
Miller making the same points to him. He told Miller he want-
ed to file a grievance over the matter. Miller told him that he
told Wigley and Reuther that they had to be careful in handling
the issue, but he advised Farrell to “give it a cooling down peri-
od.” Tr. 91–92.
Farrell followed up these efforts in an October 13, 2016 let-
ter to District Superintendent Kamage and an email to Interna-
tional Representative Miller the same day asking for a restora-
tion of his past seniority. G.C. Exhs. 15 and 16. According to
District Superintendent Kamage, from the first day Farrell re-
turned to work in October 2016, Farrell repeatedly complained
about his seniority and also submitted grievances about it to
him. Those complaints and grievances were not acted upon
because Kamage said that union seniority was up to Respond-
ents. Tr. 22–23, 60–62, 65, GC Exh.15
Farrell’s email to International Representative Miller on Oc-
tober 13, 2016 asked him to review attached emails regarding
the treatment of Reuther’s past seniority back in March 2013 in
connection with the similar issue of Farrell’s past seniority.
G.C. Exh. 16. Those attachments were mentioned above in
connection with my discussion of Reuther’s past seniority.
Farrell received no response to his October 13, 2016 email to
Miller, but, on November 3, 2016, Farrell received a copy of an
email that Miller sent to Local 129 Officers Wigley and Reu-
ther, attaching a document, dated November 3, 2016, addressed
to the International’s Executive Board, entitled “Response to
query regarding case and contract interpretation reference Jo-
seph Farrell,” and signed by Miller. That document basically
rejected Farrell’s claims. Tr. 95, G.C. Exh. 17.
Disappointed in the response he was getting from Respond-
ents, Farrell hired a private attorney to press the seniority issue.
Tr. 97–98. On November 7, 2016, the attorney, Frank Tunis,
wrote a letter to representatives of Respondents and the Em-
ployer. Addressing the Employer, he protested that the Em-
ployer had not updated its seniority list to reflect Farrell’s past
union seniority. Addressing Respondents, he stated that the
letter was what he described as a “formal request to the Union
to initiate all available grievance and arbitration procedures” to
restore Farrell’s past seniority as had been done for Reuther. He
also reminded Respondents that they had a duty of fair repre-
sentation, and, if that was not complied with, Farrell would file
a charge with the NLRB. GC Exh. 19.
At the time, International Representative Miller responded to
Tunis’ November 7 letter about Farrell’s seniority by telephone.
Miller told Tunis that Farrell’s employment had previously
been terminated for cause and Respondents had no further in-
terest in pursuing the matter, describing it as frivolous. GC
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 9
Exh. 20.8
On December 2, 2016, counsel for Akal sent Tunis an email
stating that Farrell was not terminated by Akal Security, but
was simply removed from the contract for a period of time due
to an extended medical leave. The email continued that the
Employer would not publish a new seniority list unless so noti-
fied by Respondents “that they wish for a change to be made.”
GC Exh. 20.
On January 23, 2017, Tunis sent still another letter to Miller
again raising the failure of Respondents to file a grievance on
behalf of Farrell’s past seniority. Tunis made reference to Mil-
ler’s previous response, but told him that Akal took a contrary
position to that of Respondents on this issue. He referenced the
email from Akal’s counsel mentioned above to the effect that
Farrell was not terminated in January 2015, and included the
email as an attachment to the letter. Tunis also attached docu-
ments showing that Akal restored Farrell’s company seniority
with regard to benefits. He again urged Respondents to process
a grievance on Farrell’s union seniority and told Miller that
Akal’s support should result in a favorable determination on
Farrell’s past seniority. He also again reminded Miller of Re-
spondents’ duty of fair representation. GC Exh. 20.
In a January 23, 2017 email to Tunis, Miller responded to
Tunis’ letter of the same day. He stated that Farrell was sepa-
rated from the bargaining unit in January 2015, pursuant to
Section 2.2 E. of the collective bargaining agreement. Miller
also asserted that the settlement of the original grievance did
not include a remedy about seniority and Farrell’s seniority was
determined in accordance with the collective bargaining agree-
ment. He ended by stating that the matter was “considered
closed.” GC Exh. 21.
Miller testified about how he treated the past seniority of
Reuther and Farrell, two identical situations—removal from the
contract because of on-the-job injuries that led to their place-
ment on workmen’s compensation and medical leave, with the
same opportunity to return to work, as well as the same appli-
cable seniority provision that was administered by Respond-
ents. I did not find Miller’s testimony in this respect reliable.
He seemed unduly argumentative and even inconsistent when
he explained that he could not represent Farrell because he was
not in the unit when Respondents did in fact represent Farrell in
the grievance over his removal from the contract. See Tr. 202–
206. He also appeared stubbornly adhering to a particular read-
ing of the seniority language in order to support a litigation
position, especially since he did not read the seniority provision
the same way when he granted Reuther’s past seniority. Nor
did he offer any other specific examples as to how the seniority
provision was actually read. In the end, he admitted that his
treatment of Reuther’s seniority was a “mistake” (Tr. 208) that
was not ever corrected. I also find that testimony not credible.
Accordingly, I shall give no special weight to Miller’s reading
of the seniority provision and will independently analyze it in

8 The above was contained in Tunis’ subsequent letter to Miller,
who testified extensively in this trial, but did not deny Tunis’ version of
the conversation.
all the circumstances, as shown later in this decision.9
On February 1, 2017, Farrell filed the initial charge in this
case, which dealt with the seniority issue. The complaint on
that charge issued on June 28, 2017. GC Exh. 1(a) and (c).
Complaints to the Employer about Farrell
On September 27, 2017, Reuther came into District Superin-
tendent Kamage’s office and complained that Farrell was wear-
ing an i-watch which had internet and phone capability. Tr.
29–30, Jt. Exhs. 3 and 12. This was arguably against a Mar-
shals Service directive against having cell phones or other elec-
tronic devices while on duty. GC Exh. 3. Employees were
reminded of this directive in a memo to all security officers by
Kamage on August 24, 2017, and all employees signed a form
agreeing that they had received the reminder. GC Exhs. 4 and
5. The memo reminded employees that no telephones or elec-
tronic devices were permitted, and that any security officers in
violation would be charged with a “performance violation” that
“can result in time off up to and including discharge.” GC Exh.
4. Reuther admitted that his complaint to Kamage was based on
an alleged violation of the directive against cell phone use. Tr.
154.
Contrary to his usual practice in handling employee con-
cerns, Reuther had not talked to Farrell about his i-watch before
complaining about it to Kamage. Tr. 154. His differences with
Farrell, who was one of two union officials who opposed the
grant of his past seniority in 2013 and who failed to support
him in the overtime fraud dispute, is clear on this record. But
his testimony specifically mentioning Farrell elevates those
differences to outright animus for the latter’s positions on inter-
nal union matters. Reuther testified that he had to go to the
International to resolve his seniority at the time because he “got
no help from the Local Union, which Mr. Farrell was part of.”
Tr. 162. He also testified that he believed that Farrell caused
David Wehrer, a fellow security officer, to file a charge against
him with the Labor Board. Tr. 158.
When Reuther came into Kamage’s office to complain about
Farrell’s use of the i-phone, he said that he did not see Kamage
use the i-phone, but that two other security officers told him
about the matter. When Kamage asked who the two security
officers were, Reuther declined to reveal their names, stating
that they came to him in confidence. Reuther stated that the
officers wanted him to talk to Kamage because “I have access
to your office.” In these circumstances, Kamage concluded that
Reuther was speaking to him in Reuther’s capacity as a repre-
sentative of Local 129. Tr. 31–32. I find that that was a rea-
sonable conclusion.10

9 It is ironic that, in support of their denial of Farrell’s past seniority
in the present case, Respondents point to Farrell’s view as to the mean-
ing of the seniority provision of the bargaining agreement when he
unsuccessfully pleaded against the grant of Reuther’s past seniority in
2013. R. Br. 49–51. But, in my independent review of the seniority
provision, I will likewise not rely on Farrell’s previous reading of it.
10 Reuther testified that he went to Kamage with fellow union officer
Wigley. Tr. 154. Wigley testified, however, that he could not recall
accompanying Reuther in his complaint to Kamage. Tr. 222. If Reu-
ther is to be believed, the fact that two union officials went in to talk to
Kamage confirms that, at the time, Reuther was acting in his capacity
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Kamage investigated Reuther’s complaint by first talking to
Farrell, telling him that Reuther had made the complaint. Far-
rell said that the i-watch does not work unless one carries a
connected cell phone on his person. Farrell also said he did not
carry his cell phone on his person and that the phone was in his
locker. Tr. 29–30,105. Kamage later did some on-line research
and confirmed that what Farrell had said was true. He then
reported the complaint and the results of his investigation to
William Pugh, his contact with the U.S. Marshals Service.
Pugh agreed that the i-watch could be worn as long as it did not
have phone or internet capability. Tr. 29–31, 105-106. Reu-
ther’s complaint was thus found not to have merit. Tr. 35, 36.
Later that same day, Kamage told Reuther the result of his
investigation and that Farrell could continue wearing the i-
watch. Tr. 36. He also confirmed that other security officers
could wear such a watch. Tr. 67–68. Reuther stated that he did
not “like” Kamage’s determination and complained that Farrell
had called him a “rat.” Kamage told Reuther to “calm down,”
that he knew that Reuther and Farrell did not like each other,
and he was not “going down that road.” But, according to
Kamage, Reuther’s “complaint continued” in another form, in
the “same time frame.” Tr. 36–37.
According to Kamage, the i-watch matter continued when
Farrell received a vulgar call on his cell phone, which he men-
tioned to Kamage. Tr. 28, 37. After he learned that Reuther
had complained about his i-watch. Farrell confronted Reuther
and asked Reuther why he had made his complaint. Reuther
told him, “the guys were complaining.” When Farrell asked
who was complaining, Reuther said he would not tell him. Tr.
105. Farrell later went up to the control room, where he no-
ticed, from a phone bank that captures all the outgoing phone
numbers, that there had been two phone calls from the control
room to his personal cell phone number. Tr. 106. Sometime
later, Farrell checked his cell phone and discovered the vulgar
voice-mail message that he identified as having come from
Reuther, who was berating him about the i-watch on his wrist.
Tr. 108.
Because he was on vacation at the time of the discovery of
the cell phone message, Kamage suggested that Farrell contact
the Marshals Service or the Federal Protective Service (FPS),
which handles security on federal property. Tr. 28, 37. When
he returned from vacation, Kamage became concerned that this
might involve “a criminal matter.” Tr. 37. He therefore under-
took an investigation of the matter in December of 2017. Jt.
Exhs. 3 and 12. Since Farrell told Kamage that he suspected
Reuther had made the call, Kamage and an official from FPS
first interviewed Reuther, who denied making the call. Tr. 38.
Later, they spoke with Farrell, who had a voice-mail tape of the
call. After listening to the tape, Kamage concluded that the call
was indeed vulgar and concerned Farrell’s i-watch, about which
Reuther had made the earlier complaint. Kamage also deter-
mined that the call came from the control room at the Employ-
er’s work site, which had cameras covering the various security

as a union representative. In view of Kamage’s testimony set forth
above, and because of Reuther’s general unreliability as a witness, as I
have previously mentioned, I specifically discredit Reuther’s testimony
that he did not go to Kamage as a union representative.
officer stations. He investigated the matter further and con-
cluded that, at the time the call was made, the cameras were
zoomed in on Farrell and Reuther was on duty in the control
room. Kamage thus concluded that Reuther had made the call.
Tr. 38–40.
After his investigation of the vulgar cell phone call, Kamage
again spoke with Reuther and told him that he concluded that
Reuther had made the call to Farrell about the i-watch. Reuther
admitted that he was watching Farrell from the control room,
but stated that he was only trying to determine whether to buy
the watch. Kamage questioned that statement, asking Reuther
why then would he not just ask Farrell about it. Kamage also
told Reuther that he was supposed to be working, not watching
Farrell. Tr. 40–41.11
Complaints to the Employer about Wehrer
When he testified in this proceeding, David Wehrer had been
employed as a security officer by the Employer for about 3
years. Tr. 115. The evidence shows that there were dueling
charges of harassment by Reuther and Wehrer against each
other made to District Superintendent Kamage. Wehrer com-
plained to Kamage about Reuther’s alleged harassment of him.
Tr. 65-67. And Reuther had made complaints to Kamage about
Wehrer, one about Wehrer leaving his post and another about
not properly having control of his firearm. Tr. 41–42. Accord-
ing to Wehrer, Reuther also complained about his alleged body
odor, leaving his post and improper use of firearms. Tr. 115–
120. But the first two complaints about leaving his post and
improper use of a firearm were not harassment; they were seri-
ous and justifiable complaints, which Kamage took seriously
and investigated. Indeed, Wehrer was admonished for the fire-
arms incident. Tr. 39, 41–44.
Wehrer supported Farrell in his fight to have his past seniori-
ty restored, including participating in the Board investigation of
Farrell’s original charge. During that investigation, he men-
tioned the alleged harassment against him by Reuther. He filed
a charge with the Board on that matter on March 20, 2017,
which was docketed as Case 04–CB–195249. The charge was
subsequently withdrawn. Tr. 122–123,134–135, Jt. Exhs. 5 and
12.
On July 3, 2017, Reuther submitted a written complaint
about Wehrer harassing him and asked Kamage to put a stop to
it. 12 Here is the complaint in its entirety (GC Exh. 6):
On November 14th 2016, I, Robert Reuther, while employed
as a court security officer was the subject of a false harass-
ment claim by a fellow employee David Wehrer. Mr. Wehrer

11 The above findings with respect to the i-watch incident and its af-
termath are based on the credible and mostly uncontradicted testimony
of Farrell and Kamage. A tape of the call was received in evidence by
stipulation, but it is undecipherable except for the words, “turn that
fucking hand over, Joe.” Jt. Exhs. 6, 6(a) and 12.
12 According to Kamage, Wigley was with Reuther when Reuther
submitted his complaint about Wehrer. When Kamage asked why
Wigley was present, Reuther said it was because he wanted union rep-
resentation. Tr. 44–46. Wigley did not remember being with Reuther
on that occasion, but, although he remembered talking to Reuther about
the matter, he credibly testified that he did not join Reuther in the com-
plaint. Tr. 220.
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 11
made this false claim to the employer Akal Security, After
Mr. Wehrer was unsuccessful with this claim, he then went on
to report another false harassment claim to the National La-
borRelations Board on March 20th 2017. On May 1st 2017
Mr. Wehrer attempted to place a grievance at my expense for
one hour of overtime that I had received! After being ques-
tioned by acting senior lead Joseph Williams, Mr. Wehrer
admitted he would not have made the complaint if it “had
been anybody but me” These actions are clearly violations of
Akals core values. I have been targeted by this man which I
believe is because of my position as a local union official.
This is discrimination under a number of federal laws which
prohibit this type of harassment of a protected class. I expect
this matter to be addressed forcefully as has been in the past
when oneemployee made just one false claim against another
officer.
Kamage also investigated the above complaint. Wehrer’s
complaint about Reuther’s overtime was not deemed harass-
ment because it was valid, even though Reuther was found not
to have done anything wrong. Kamage also told Reuther that
he was not going to do anything about the NLRB matter. He
essentially resolved Reuther’s harassment complaints by wisely
utilizing benign neglect. Tr. 41–48, 65–66.
On July 27, 2017, Wehrer wrote a letter to International Rep-
resentative Miller, referring to his having earlier reached out to
Miller back in November 2016 about Reuther’s alleged har-
assment of him. R. Exh. 3 . At that time, Wehrer had apparent-
ly mentioned the body odor matter, the firearm incident, the
complaint about Wehrer’s leaving his post, and another matter,
the change of a name plate on his locker. These alleged inci-
dents of harassment were also mentioned in the letter to Miller.
See R. Exh. 3. When he was cross-examined concerning his
complaints about the harassment by Reuther, Wehrer admitted
that those he mentioned to Miller were the only ones he was
complaining about. Tr. 126–127. He also admitted that one,
leaving his post, was made to the Employer and resolved in his
favor. In addition, he admitted that he did not know, at the
time, who made the complaint about his improper control of a
firearm. But he further admitted that there was another prior
admonition about lack of control of his firearm by his lead of-
ficer. Tr. 127–131. Wehrer further admitted that he did not
know who changed the name plate on his locker. Tr. 132.
Finally, in his letter to Miller, Wehrer said that the complaints
about his body odor were “anonymous.” R. Exh. 3.
According to Wehrer, sometime in September of 2017, he
had a conversation with Reuther and Wigley in which his July
27 letter to International Representative Miller was discussed.
Wehrer told them he wanted to “bury the hatchet,” presumably
concerning his differences with Reuther, but, according to
Wehrer’s direct testimony, Wigley brought up the letter to Mil-
ler and said “you’re fuck[ed],” and “we don’t want to have
nothing to do with you.” Tr. 122–123. Later, on redirect,
Wehrer amplified his testimony about the conversation by de-
scribing it as heated and added that Wigley said, “I told you to
stay away from Joe Farrell, that he was no good,” and “a low
life scum bag.” Tr. 135–136.
Wigley’s testimony about this matter was different. He testi-
fied that Wehrer came to him alone. Wehrer told Wigley about
his letter to Miller and that he wanted Wigley to talk to Reuther
about “burying the hatchet.” Wigley told Wehrer that this
would take time and advised Wehrer to leave Reuther alone.
Wigley thereafter contacted Miller and asked for a copy of
Wehrer’s actual letter to Miller. He then went back to Wehrer
and told him that Wehrer’s prior effort to bury the hatchet was
contradicted by the claims he made in his letter to Miller.
Wigley told Wehrer that he could not trust him anymore and
that he did not want to talk to Wehrer unless he had a union or
job related matter to discuss. Tr. 218–219. Wigley specifically
denied telling Wehrer that he was “fuck[ed]” or calling Farrell
a “low life scum bag.” Tr. 219.
I credit Wigley’s testimony about his conversations with
Wehrer concerning the Miller letter. Wigley impressed me as a
candid and truthful witness who testified with clarity and detail
about this matter. I do not credit Wehrer, who rambled quite a
bit in his testimony. He also seemed prone to exaggeration, as
shown by his elaboration on redirect about his conversation
with Wigley. Moreover, some of his claimed harassment was
trivial and he seemed to blame Reuther for incidents about
which he could not name the perpetrators. In my view, Wehrer
also exaggerated his support of Farrell. These exaggerations
were an effort, it seemed to me, to support his likewise exag-
gerated and unsupported testimony that Wigley and Reuther
wanted to get him fired, something he admittedly never heard
either Wigley or Reuther say. Tr. 134.
Discussion and Analysis
The Farrell Seniority Issue
The General Counsel alleges that Respondents violated Sec-
tion 8(b)(1)(A) of the Act by failing to file a grievance on be-
half of Farrell’s failure to obtain his past seniority upon his
return to work after a medical leave of absence. According to
the complaint, the failure to file such a grievance was because
of Farrell’s internal union activities and his disagreements with
officials of Respondent and because the treatment of Farrell in
this respect was arbitrary. This brings into play a union’s duty
of fair representation. That duty requires that a bargaining
agent treat the employees it represents in a manner that is not
arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386
U.S. 171, 190 (1967). See also Amalgamated Transit Union
Local 1498 (Jefferson Partners L.P.), 360 NLRB 777, 778
(2014). Failure to file a grievance for the unlawful considera-
tions mentioned above amounts to a violation of the duty of fair
representation and thus of Section 8(b)(1)(A) of the Act. See
Auto Workers Local 417 (Falcon Industries), 245 NLRB 527,
534–535 (1979); and Service Employees Local 579 (Beverly
Manor Convalescent Center), 229 NLRB 692, 695–696 (1977).
Respondents deny that they acted arbitrarily, discriminatorily
or in bad faith in deciding not to pursue a seniority grievance,
specifically denying that Farrell’s internal union activities were
a consideration in their decision. Respondents also contend that
their decision was based a reasonable interpretation of the ap-
plicable bargaining agreement, specifically the provision on
union seniority. It is well settled that a bargaining agent is
afforded a “wide range of reasonableness” in serving the unit it
represents. Accordingly, a union does not violate its duty of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
fair representation where its failure to file a grievance is based
on a reasonable interpretation of the bargaining agreement or a
good faith evaluation of the merits of a grievance. The Board
does not undertake to determine whether the union’s interpreta-
tion was correct, but rather whether it was reasonable. Auto
Workers Local 651 (General Motors Corp.), 331 NLRB 479,
479–480 (2000), citing relevant authorities.
The standard of reasonableness does not change in circum-
stances where, as here, the union may have permitted the deci-
sion to be influenced by a vote of the membership of the unit
that includes those who may be adversely affected. See Transit
Union Division 822, 305 NLRB 946, 949–953 (1991), citing
relevant authorities. Indeed, as the Board has stated, a union
may not escape a violation of its duty of fair representation by
taking a position simply “because a majority of its members
want it to.” General Truck Drivers Local 315, 217 NLRB 616,
619 (1975).
Applying the above principles to the facts of this case—
which clearly show that Respondents failed to file a grievance
over the restoration of Farrell’s past union seniority after he
returned to work in October 2016, despite repeated requests to
do so, I find that Respondents’ failure to file a grievance over
the restoration of Farrell’s past seniority or to restore such sen-
iority on their own amounted to a violation of their duty of fair
representation. Indeed, the record shows that Respondents did
not even have to file a grievance. The evidence is clear that the
Employer ceded union seniority, that is, seniority that governed
job bids and assignments, exclusively to Respondents to handle
on their own. This is also shown by International Representa-
tive Miller’s intervention to grant Reuther’s past seniority upon
his return to work after similarly coming off medical leave in
2013. Miller’s determination to grant Reuther’s union seniority
was simply followed by an informal and perfunctory notifica-
tion of that decision to a representative of the Employer, who
readily agreed to Miller’s decision. At that time, Miller did not
require the filing of a grievance.
In contrast, when Farrell came off his medical leave of ab-
sence, Respondents treated him differently. Miller admitted
that the seniority contract provision was the same in both Reu-
ther’s situation and that of Farrell. Tr. 189. But, contrary to
their treatment of Reuther, in Farrell’s case, Respondents did
not file a grievance seeking to restore his seniority, exercise
their authority to restore Farrell’s past seniority on their own, or
ask the Employer for approval to do so. Instead, they declined
to restore Farrell’s past seniority, contrary to their treatment of
Reuther. This was clearly arbitrary and discriminatory since
the situations were the same. Indeed, if anything, Reuther’s
claim to past seniority had less merit than Farrell’s. Reuther
had been employed for only 6 months before he was injured
and stopped working as a security officer. He was then on
medical leave for almost 7 years until he was returned to work.
Farrell was employed over 6 years before he was injured and
stopped working. He was on medical leave for 2-1/2 years
before he was returned to work. Also, unlike Farrell, Reuther
was removed from the contract by one employer and had his
seniority restored to his original hire date under a different
employer. Such discriminatory and arbitrary treatment
amounts to a violation of the duty of fair representation.
The vote of the Local 129 membership does not shield Re-
spondents from their otherwise unlawful actions or, in this case,
inactions, as shown by reference to the Transit Union and the
Local 315 cases, cited and discussed above. But the vote does
provide obvious evidentiary support for the violation, as Re-
spondents recognize since they take a diversionary tack on the
matter in their brief (R. Br. 52–53): They contend that the
membership vote was not addressed to the filing of a grievance
over Farrell’s past seniority, but rather was addressed to wheth-
er the seniority language of the collective bargaining agreement
would be modified. But that position is contrary to the lan-
guage of the ballot, which made it quite clear that the issue was
restoration of Farrell’s past seniority. Thus, the membership
vote itself buttresses the finding of arbitrary action and discrim-
ination. Moreover, further support for that finding comes from
the fact that no such formal vote was taken in Reuther’s case,
even though the record shows there were objections from other
unit members at the time and indeed at least one grievance was
filed objecting to the grant of Reuther’s past union seniority.
Respondents’ suggestion (R. Br. 53 fn. 28) that Reuther also
sought approval of the membership is unavailing. The sugges-
tion relies on hearsay accounts from Reuther that, at the time of
his seniority dispute, he spoke with affected members who did
not object. Tr. 162 and Jt. Exhs. 8 and 12. I cannot use those
accounts to support reliable findings of fact, not only because
they are hearsay, but also because they come from an otherwise
discredited witness. In any event, those hearsay accounts, pre-
sumably based on oral conversations whose details are not pos-
sible to assess, are a far cry from the formal vote taken in Far-
rell’s situation.13
Respondents’ essential defense—that their position was
based on a reasonable interpretation of the seniority provision
in the bargaining agreement—is totally without merit. That
position is contrary to the interpretation made in Reuther’s
situation, which was the same as Farrell’s and involved the
same seniority provision. Significantly, the union seniority
provision that defines termination of seniority does not mention
the treatment of employees coming off medical leave or work-
men’s compensation. The absence of such mention in a provi-
sion that affirmatively and specifically lists conditions that
“shall” result in termination of seniority strongly supports the
conclusion that employees coming off medical leave or work-
men’s compensation do not lose their seniority. This comports
with the venerable principle of contract interpretation known as
expressio unis est exclusio alterius. See Principles of Contract
Interpretation: Interpreting Collective Bargaining Agreements,
Grenig, 16 Cap. U. L. Rev. 31, 46–47 (1986).
Respondents’ specific contention, as shown in Miller’s Janu-
ary 23, 2017 email to Farrell’s private attorney (GC Exh. 21) as

13 The membership vote on Farrell’s past union seniority was not
conducted in a manner that would yield valid results in any event. The
vote was hastily arranged the day before Farrell came back to work. It
also appears that notification of the vote was given by word of mouth,
with no detailed explanation of the issues or opportunity to weigh the
previous treatment of the seniority issue, or the impact, if any, on the
Employer’s view that Respondents had complete authority to set union
seniority rules as they saw fit. See Local 315, cited above, 217 NLRB
at 619.
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 13
well as his testimony (Tr. 188-189), is that Farrell “was perma-
nently transferred out of the bargaining unit,” under Section 2.2
of the contract’s seniority provision, which governs termination
of union seniority. This contention is repeated in Respondents’
brief (R. Br. 43–45). But that is an erroneous reading of Section
2.2, unsupported by any relevant evidence of past practice un-
der that provision and contrary to its plain meaning. Farrell
was not transferred out of the bargaining unit—he was not
transferred at all; nor was he “permanently” dispensed with or
moved anywhere. As shown above, the Employer repeatedly
confirmed that Farrell was not terminated at all and remained
an employee, able to return once his medical condition im-
proved and a position became available. This was the same
condition under which Reuther was released from the Marshals
contract. Nor was the cited language read the same way when
Miller restored Reuther’s past seniority—the only record evi-
dence of relevant past practice in circumstances that mirrored
those of Farrell. Finally, none of the other specific conditions
listed in Section 2.2 for the termination of an employee’s sen-
iority apply in Farrell’s situation—as they did not apply in Reu-
ther’s situation. Thus, I find that Farrell retained his past union
seniority, just as Reuther did.14
In accordance with the above analysis, I not only find that
Farrell retained his past union seniority, but I also reject as
without merit any contention by Respondents that granting
Farrell’s past seniority required a change in the seniority provi-
sion of the bargaining agreement. Respondents had been ceded
complete authority on union seniority. I also reject Miller’s
testimony, in apparent recognition of his disparate treatment of
Reuther and Farrell in otherwise like situations, that he made a
“mistake” in Reuther’s case. Tr. 208. That is a convenient, but
non-credible, after-the-fact excuse. Respondents never
sought—until this day—to correct the alleged “mistake” to
provide a consistent reading of the seniority provision by re-
voking Reuther’s past seniority. Their inconsistent readings of
the seniority provision belie any effort to cast Respondents’
present reading of the seniority provision reasonable. But, even
in isolation, their present reading of the seniority provision is
unreasonable—and wrong. Indeed, as shown above, Respond-

14 In his testimony, Miller briefly alluded to the restoration of senior-
ity provision of the bargaining agreement, Section 2.3 of the agreement.
He opined (Tr. 188) that Farrell did not qualify under the language of
that section, which states that an “[e]mployee returned to work after
overturning a medical disqualification shall regain their [sic] seniority
back to the original date of hire.” Respondents’ brief makes the same
point. R. Br. 46-47. There is, of course, no need to reach the restored
seniority language because, as I have found above, Farrell’s seniority
was never terminated. But, here again, Miller’s reading of this lan-
guage on restored seniority is tortured and contrary to common sense.
And it is contrary to Miller’s reading (or non-reading) of the same
language in Reuther’s case. Significantly, the language is meaningless
unless it applies to employees who return from an extended medical
leave upon regaining their health, as was the situation both in Farrell’s
case and in Reuther’s case. There is no rational basis for treating those
who have successfully overturned a medical disqualification differently
from those who simply return to health after being on medical leave;
and Respondents have offered no evidence to support a contrary view.
Nor have Respondents shown that the restored seniority language was
read the way Miller now reads it in any other situation.
ents’ real “mistake” was in not granting Farrell’s past seniority,
just as they granted Reuther’s past seniority. See Union de
Obreros de Cemento Mezclado (Betterroads Asphalt), 336
NLRB 972, 973 (2001), where the Board found that a union’s
reading of a bargaining agreement’s seniority provision was
unreasonable and contrary to the agreement.15
I also reject any attempt to distinguish the Farrell situation
from the Reuther situation on the ground that Farrell was re-
moved from the contract because he failed to take his annual
physical while on workmen’s compensation. Despite the fact
that Farrell’s original removal letter mentioned the lack of a
physical, Farrell was specifically excused from taking his annu-
al physical while he was on workmen’s compensation. And it
is clear from the documentary evidence that the Employer re-
peatedly stated that Farrell remained an employee notwith-
standing being on medical leave. Indeed, there is no evidence
that Reuther took annual physicals while he was on workmen’s
compensation, and he was on medical leave for a much longer
period that Farrell. Yet he was granted his past union seniority
without regard to whether or not he took his annual physical.
The above, without more, clearly supports a finding that Re-
spondents’ failure to grant Farrell his past seniority, as they did
for Reuther, was discriminatory and arbitrary, in violation of
their duty of fair representation. Although it is not essential to
the violation, I also find that Respondents’ failure to seek or
grant Farrell’s past seniority was motivated by Farrell’s internal
union activities and disagreements with Respondents, as the
General Counsel alleges. Farrell was a past union officer who
had objected to the grant of past seniority to Reuther, who was,
at the time of Respondents’ consideration of Farrell’s past sen-
iority, himself a union officer. Reuther’s own testimony in this
case shows that he still—five years later—holds an animus
against Farrell for his objection to Reuther’s grant of past sen-
iority, a position which, of course, Farrell was entitled to take
as part of normal union or protected activity. Reuther, of
course, was an integral part of the Respondents’ decision-
making with respect to denying Farrell’s past seniority that
dated from the failure to include a restoration of Farrell’s past
seniority in the resolution of his prior grievance, despite Far-
rell’s repeated requests that he be treated just like Reuther.
Respondents’ position on this matter continued through the
membership vote and thereafter. The inference is thus clear
that Respondents’ position in denying Farrell’s past seniority
was an effort to protect the discriminatory and contrary grant of
past seniority to Reuther. Reuther’s continuous antagonism to
Farrell is also shown by his subsequent meritless complaint to
the Employer, which has been found, as shown below later in
this decision, to separately violate the Act. Thus, the General
Counsel has shown that Respondents’ disparate treatment of
Farrell was the result of Farrell’s protected concerted and union
activity and Respondents have not shown that that such dispar-
ate treatment was based on legitimate considerations that would

15 It is well settled that the Board is not precluded from interpreting
the meaning of a collective bargaining agreement if necessary to decide
or remedy an unfair labor practice issue before it. NLRB v. C&C Ply-
wood Corp., 385 U.S. 421, 428 (1967); and NLRB v. Strong Roofing &
Insulating, 393 U.S. 357, 360–362 (1969).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
have resulted in the same decision in the absence of Farrell’s
protected activities. I have already rejected the notion that Re-
spondents had a reasonable basis to read the seniority provision
against restoration of Farrell’s past seniority. Indeed, there is
really no evidence of a benign reason for Respondents’ con-
duct, except for Miller’s discredited testimony that he made a
“mistake” in granting Reuther his past seniority.
In these circumstances, I find that the Respondents’ failure
either to file a grievance to restore Farrell’s past seniority or, in
accordance with the Employer’s view that such seniority was
solely within the province of Respondents, to outright grant
Farrell’s past seniority, amounted to a violation of their duty of
fair representation and thus Section 8(b)(1)(A) of the Act.16
The General Counsel also alleges a separate violation of the
duty of fair representation in the actual vote of the Local 129
membership to deny Farrell’s past seniority (GC Br. 30–35),
referring to paragraphs 6(a) and (b) of the complaint (GC Exh.
1(f)), and General Truck Drivers Local 315, cited above at 217
NLRB 616. I do not pass on that specific allegation of the
complaint. Although, as I have stated, a union may not justify
otherwise arbitrary or discriminatory conduct on the basis of a
vote of the union membership and the membership vote in this
case was an evidentiary piece of the violation found, here, un-
like in the Local 315 case, the Respondents’ actions in denying
Farrell’s past seniority or in filing a grievance over the matter
were not based solely on the vote of the union membership.
The General Counsel erroneously suggests (GC Br. 19–20, 32)
that Miller’s November 2016 submission to the International’s
Executive Board asserted that the membership vote was the
main reason for the denial of Farrell’s past seniority. But that
document lists other reasons as well, including Miller’s reading
of the seniority provision of the bargaining agreement and the
absence of any mention of seniority in the settlement of the
grievance regarding Farrell’s alleged termination. GC Exh. 17.
Indeed, it is not clear from the Board’s decision in the Local
315 case whether the violation in that case was based solely on
the vote of the membership. It is true that the Board in Local
315 found that the vote itself in that case was flawed and that
“the violation consists . . . in the unfairness in its decision-
making process” (217 NLRB at 619), but neither the conclusion
of law nor the remedial order made a specific reference to the
membership vote. Id. at 620.
The membership vote in this case was not essential to the
Respondents’ decision-making; rather it was simply used to
buttress an otherwise unlawful position that Respondents de-
fended on grounds other than the membership vote—their in-
terpretation of the seniority provision of the bargaining agree-
ment. See R. Br. 42, where Respondents assert that their actions
were “directed entirely” to their reading of the seniority provi-
sion of the bargaining agreement. Nor, in view of my finding
of a violation on a different, more general basis, is it necessary
to consider the specific allegation urged here by the General
Counsel, particularly as it would not add significantly to the
remedy. Indeed, my unfair labor practice finding and its reme-

16 As parties to the collective bargaining agreement, both parties
were acting in concert in failing to grant Farrell’s past seniority. They
are thus both liable on this part of the case.
dy can be read to include any and all ways Respondent utilized
to deny Farrell his past union seniority.17
The Attempt to Cause Employer Discrimination against Farrell
and Wehrer
The General Counsel alleges that Respondent Local 129
filed complaints with the Employer about Farrell and Wehrer
because of their protected concerted activity in an attempt to
cause the Employer to discriminate against them in violation of
Section 8(b)(2) of the Act. More specifically, the allegation is
that such complaints were made concerning Wehrer in early
July 2017 because he filed a Board charge against Local 129,
and cooperated in the investigation of another Board charge
involving Farrell; and such complaints were made concerning
Farrell in late September 2017 because he complained to Local
129 about the denial of his past seniority and filed a charge
about the denial of his past union seniority with the Board.
According to the complaint, such conduct on the part of Local
129 also amounted to a violation of its duty of fair representa-
tion and of Section 8(b)(1)(A) of the Act.
A union violates Section 8(b)(2) of the Act when it causes or
attempts to cause an employer to discriminate against an em-
ployee in violation of Section 8(a)(3). In determining whether
a union has violated Section 8(b)(2) in this respect, the Board
has applied both the analytical framework of Wright Line18 and
that of the duty of fair representation.19 Caravan Knight Facili-
ties, 362 NLRB 1802, 1804–1805 (2015), enforcement denied
on the facts of the violation, sub nom. United Auto Workers v.
NLRB, 844 F.3d 590 (6th Cir. 2016). Citing numerous authori-

17 For the first time in their posthearing brief (R. Br. 38–41), Re-
spondents contend that the complaint allegation regarding failure to file
a grievance over the denial of Farrell’s past seniority is time barred by
Sec. 10(b) of the Act because Farrell knew that Respondents intended
to deny him his past seniority when they failed to include that remedy
in the September 2015 grievance settlement, more than 6 months prior
to the charge that gave rise to the complaint allegation being considered
in this case—the failure to file a grievance over Farrell’s past seniority
upon Farrell’s return to work in October 2016. But Section 10(b) is a
statute of limitations, not an evidentiary rule. It is well settled that
evidence outside of the 10(b) period is admissible to shed light an un-
fair labor practice that occurred within the 10(b) period. See Machinists
Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 414, 429 (1960).
Thus, Respondents’ failure to include a restoration of Farrell’s past
seniority in the September 2015 grievance settlement provides a rele-
vant evidentiary backdrop to their denial of his past seniority upon his
return to work in October 2016, as I have mentioned above. But, inso-
far as it asserts a statute of limitations bar against consideration of the
allegation itself, Respondents’ 10(b) defense is without merit. First of
all, Respondents never mentioned in their answers that they were as-
serting such a defense. And it is clear that Section 10(b) is an affirma-
tive defense that must be affirmatively pled, and, if not, it is waived.
See EF International Language Schools, Inc., 363 NLRB No. 20, slip
op. 1 at fn. 2 (2015), enfd. 673 Fed.Appx. 1 (D.C. Cir. 2017). In any
event, the denial of Farrell’s past seniority and failure to file a griev-
ance upon his return to work in October 2016 and thereafter involved a
discrete set of circumstances, separate and apart from Respondents’
failure to address the seniority issue in settling the grievance that dealt
with Farrell’s alleged “termination.”
18 Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
19 See Vaca v. Sipes, cited and discussed above in this decision.
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 15
ties, that decision, at 1805–1806, spells out the following de-
tails about such analytical frameworks.
Under the duty of fair representation framework, when a un-
ion causes or attempts to cause an employer to discriminate,
there is a rebuttable presumption that the union acted unlawful-
ly because it has used its power to affect an employee’s liveli-
hood, thus encouraging union membership. The union may
rebut that presumption by demonstrating that it acted pursuant
to a valid union security clause or that its actions were taken in
good faith to effectively represent its constituency as a whole.
In the latter case, the good faith reporting of violations of em-
ployment rules or policies is a factor that rebuts the presump-
tion of a violation. Under the Wright Line framework, a similar
presumption applies if the General Counsel can show that a
reason for the attempt to cause discrimination is the employee’s
protected activity. That presumption may be overcome if the
union shows that it had a legitimate reason for its action and
that its action would have been undertaken even in the absence
of the employee’s protected activity. Under both frameworks,
the General Counsel succeeds if it is shown that the union’s
reason for its action was a pretext, that is, that it was not the
true reason for the action. See also SSA Pacific, Inc., 366
NLRB No. 5, slip op. at 17 (2018).
The Complaint about Farrell
I find that Respondent Local 129 violated Section 8(b)(2) of
the Act by virtue of Reuther’s complaint to Kamage concerning
Farrell’s alleged use of a prohibited electronic device. First of
all, there is no doubt that, in making the complaint, Reuther
was acting as an agent of Local 129. He himself testified that
he did not see Farrell using the electronic device, but brought
the complaint of other unit members to the Employer and he
did so because he had access to Kamage, presumably because
he dealt with Kamage in his capacity as a union official. And
Kamage credibly testified that he viewed Reuther as acting as a
Local 129 representative. See Security, Police and Fire Profes-
sionals of America, Local 444, 360 NLRB 430, 430 fn. 2
(2014).
There is also no doubt that Reuther was attempting to have
the Employer discipline Farrell. Reuther’s complaint was ad-
mittedly made in the context of a recent reminder from the
Employer that use of electronic devices on the job would result
in discipline up to and including discharge. Thus, under the fair
representation framework, Reuther’s complaint to the Employer
created a rebuttable presumption that Local 129 was using its
power to affect Farrell’s livelihood. Nor was that presumption
rebutted by any credible evidence from which it could be con-
cluded that Reuther’s actions amounted to a good faith report of
violations of Employer rules, particularly in view of the com-
plete lack of merit in Reuther’s complaint. Reuther’s subse-
quent action in making a vulgar phone call to Farrell about the
latter’s use of the i-phone shows his bad faith in making the
charge. In addition, the earlier violation of the duty of fair
representation by Respondents in handling Farrell’s past senior-
ity, as well as Reuther’s own testimony showing his animus
against Farrell for the latter’s opposition to Reuther’s request
for his past seniority, support this finding. Thus, I find that the
violation has been established under the fair representation
framework.
I also find a violation under the Wright Line framework.
Reuther’s complaint was motivated by his animus against Far-
rell for pursuing his past seniority claim, which had as its basis
the contrary treatment of Reuther. Farrell had objected to the
grant of Reuther’s past seniority. Indeed, by the time of Reu-
ther’s complaint about Farrell’s i-phone, Farrell had filed a
charge with the Labor Board that resulted in a complaint
against both the International and Local 129 for violation of
their duty of fair representation. The complaint on that charge
issued just two months before Reuther brought his complaint
against Farrell. Reuther’s animus against Farrell for the latter’s
intra-union and other protected activity is clear on this record,
as mentioned above. Thus, I find that the General Counsel has
initially shown that Reuther’s complaint was motivated by
Farrell’s intra-union and other protected activity. Local 129 has
not rebutted the initial inference of unlawful motivation by
showing that the complaint would have been made for reasons
other than Farrell’s protected activity. According to Kamage’s
testimony, Reuther professed to be interested either in purchas-
ing a similar i-phone or expressed the interest of other employ-
ees in making such a purchase and that is why he made the
complaint. I find that reason clearly a pretext, as Kamage also
apparently did when he asked Reuther why he did not just ask
Farrell about the watch instead of watching and calling Farrell
while he was supposed to be working. Accordingly, I find that
the violation has been established under the Wright Line
framework. See Paperworkers Local 1048 (Jefferson Smurfit
Corp.), 323 NLRB 1042, 1044 (1997),
In these circumstances, I find that Local 129, through Robert
Reuther, attempted to cause Farrell’s Employer to discipline
him in violation of Section 8(b)(2) of the Act, as alleged in the
complaint. Reuther’s conduct impacted Farrell directly and thus
also tended to restrain and coerce him—and other employees—
in the exercise of their protected rights in violation of Section
8(b)(1)(A) of the Act, as also alleged in the complaint.20
The Complaint about Wehrer
The General Counsel has not shown by a preponderance of
the evidence that Reuther’s July 2017 complaint to the Em-
ployer about Wehrer was violative of the Act. First of all, the
General Counsel has not shown that Reuther’s complaint was
made in his capacity as an agent of Local 129. Wigley credibly
testified that he did not join Reuther in his complaint, although
he knew about it. And, although at one point Kamage testified
he assumed that the complaint was being filed “on behalf of the
union,” he also testified twice that, when he asked what Wigley
was doing there with Reuther, he was told that it was because
Reuther wanted “union representation.” Tr. 44-46. Although
Reuther asserted that Wehrer made harassment complaints
against him because he was a union officer, the gravamen of
the complaint was that Wehrer was harassing him as an indi-
vidual employee. Wehrer allegedly said he would not have
made his complaints against Reuther if he were not a union

20 As to the 8(b)(1)(A) violation, see Security, Police and Fire Pro-
fessionals of America, Local 444, 360 NLRB 430, 435 (2014); and
Postal Workers, 350 NLRB 219, 222 (2007).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
officer. Thus, it was Wehrer’s prior complaints, not Reuther’s
July 2017 complaint, which brought union considerations into
the mix.
However, even if Reuther’s complaint could be considered
union action, his complaint was not an attempt to cause the
Employer to discipline Wehrer for unlawful purposes under the
Wright Line framework discussed above. Reuther simply
wanted the Employer to stop Wehrer’s harassment of him.
Although Reuther mentioned that the harassment was against
the Employer’s “core values,” there was no specific discipli-
nary action suggested or implied, contrary to the situation in the
complaint about Farrell discussed above. The record does not
include any details about the Employer’s core values or any
policy in that respect, much less evidence that disciplinary ac-
tion was part of such policy. Nor was Reuther’s complaint
motivated by Wehrer’s protected activities. Indeed, Reuther
raised his own protected activities as a probable motive for
Wehrer’s actions. Although the complaint included a reference
to Wehrer’s charge with the Board, the reference was simply
given as an example of Wehrer’s continued harassment of Reu-
ther; and Kamage made clear from the outset that he was not
going to consider that aspect of the complaint. As indicated
above, I have discredited Wehrer’s testimony that Wigley made
statements suggesting some kind of animus that Local 129 had
against him, but even that testimony had nothing to do with
Reuther’s complaint to Kamage. It referenced Wehrer’s letter
to International Representative Miller.
Even if Reuther’s complaint to Kamage could be said to
support an inference that Reuther made his complaint because
of Wehrer’s protected activity, I find that the evidence shows
that the complaint would have been made even in the absence
of Wehrer’s protected activity, in accordance with the applica-
ble Wright Line burden shifting analysis. Reuther simply want-
ed the Employer to stop Wehrer’s on-the-job harassment of
him. And, in context, Reuther’s complaint was simply a con-
tinuation of the personal dueling complaints by and against
these two security officers that apparently drove Kamage to
distraction. See Tr. 67. Thus, there was no violation under the
Wright Line framework.
Nor has the General Counsel shown a violation under the fair
representation framework. As indicated above, Reuther was
not acting on behalf of Local 129 when he made his July 2017
complaint about Wehrer to Kamage. But, even if it could be
concluded that he was, my findings above in connection with
the analysis of the matter under the Wright Line framework
establishes that Reuther’s complaint was a good faith effort to
report violations of employment rules or policies. Reuther
asked the Employer to stop Wehrer’s harassment of him under
the Employer’s “core values” policy. Thus, the General Coun-
sel has not shown a violation under the fair representation
framework.
Accordingly, I shall dismiss the complaint allegation that
Reuther’s July 2017 complaint to Kamage violated the Act.
CONCLUSIONS OF LAW
1. By arbitrarily and discriminatorily failing to file or pro-
cess a grievance dealing with Joseph Farrell’s past union sen-
iority and/or failing to grant him such seniority on their own,
with the approval of the Employer, Respondents breached their
duty of fair representation and thus violated Section 8(b)(1)(A)
of the Act.
2. By attempting to cause Farrell’s employer to discriminate
against him, Respondent Local 129 violated Section 8(b)(2) and
8(b)(1)(A) of the Act.
3. The above violations constitute unfair labor practices af-
fecting commerce.
REMEDY
Having found that Respondents engaged in certain
unfair labor practices, I shall order them to cease and desist
from such conduct and to take certain affirmative action, in-
cluding the posting of an appropriate notice, designed to effec-
tuate the policies of the Act. The General Counsel seeks a rem-
edy that Respondents request that the Employer reinstate Far-
rell’s union seniority to his original date of hire and that they
make Farrell whole for any loss of earnings and other benefits,
as well as consequential damages suffered as a result of Re-
spondents’ unlawful conduct.
The normal remedy for a union’s unlawful failure to
file or process a grievance on behalf of an employee is an order
requiring the offending union to request the employer to pro-
cess the grievance, including the payment of reasonable legal
fees for a separate attorney to handle the matter. If the griev-
ance is not possible to be processed, and the grievance is shown
to have had merit, the union is also required to make the em-
ployee whole for any losses caused by the union’s improper
handling of the grievance. Iron Workers Local 377 (Alamillo
Steel Corp.), 326 NLRB 375 (1998); and Rubber Workers Lo-
cal 250 (Mack-Wayne), 290 NLRB 817 (1998). See also Postal
Workers, Pensacola Area Local (Postal Service), 362 NLRB
1080, 1081 (2015); and Longshoremen ILWU Local 6, 336
NLRB No. 104, slip op. 2 (2001) (not reported in Board vol-
umes).21
Here, however, there is no need to order Respondents to re-
quest the Employer to process a grievance on Farrell’s past
union seniority or to await a compliance proceeding to deter-
mine whether such a grievance would have merit. The record
shows that the Employer left union seniority of the kind Farrell
sought—that which governed job bidding and assignments—to
Respondents alone. Thus, there is no conflict between Re-
spondents and the Employer that would require the filing of a
grievance. The applicable seniority provision of the bargaining
agreement itself provides that, only if there is an unresolved
disagreement between Respondents and the Employer, “may” a
grievance be filed. See Joint Exhibit 1, Section 2.1. Indeed, in
Reuther’s situation, Respondents decided to restore his past
seniority and simply made a request to the Employer to restore

21 Under the Ironworkers and Rubber Workers cases cited above, the
respondent union has a choice of litigating the merits of the grievance
either in the underlying unfair labor practice case or in the compliance
proceeding. Where the union agrees to litigate the merits of the griev-
ance in the unfair labor practice proceeding rather than in compliance,
the remedy in the unfair labor practice proceeding may include a make
whole remedy. See State, County Employees AFSCME Local 1640
(Children’s Home of Detroit), 344 NLRB 441, 447–448 (2005).
UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL AND ITS LOCAL 129 17
his past seniority and the Employer perfunctorily agreed.
Moreover, Respondents’ position on the seniority provision of
the applicable agreement was fully litigated in this proceeding.
I have rejected the Respondents’ position on the seniority pro-
vision and found that Respondents’ reliance on the seniority
provision of the collective bargaining agreement was not rea-
sonable. Finally, my reading of the applicable seniority provi-
sion, as I have stated above, leads me to conclude that Re-
spondents’ reading of it is wrong and that the proper reading of
it requires that Farrell’s past union seniority be restored. Thus,
assuming that a grievance would need to be filed, it would have
been found to have merit.
Accordingly, there is nothing more to decide and no compli-
ance proceeding is necessary. I will therefore order Respond-
ents to restore Farrell’s past union seniority in the same manner
as was done in the Reuther situation. This is particularly apro-
pos in view of particular circumstances of this case. The griev-
ance-arbitration proceeding in which Respondents could have
addressed the matter, but did not, has been completed with a
settlement between Respondents and Akal. And a new em-
ployer, Paragon, has taken over the unit after the settlement.
The equities also favor a resolution now in view of the passage
of time since Farrell first raised the issue. See Union de Obre-
ros de Cemento Mezclado, cited above, 336 NLRB at 973–974,
where the Board found a violation of the duty of fair represen-
tation and ordered a make-whole remedy in the unfair labor
practice proceeding after considering the merits of a grievance
because the parties had already completed an arbitration pro-
ceeding, in which the union failed to represent the employee in
a fair and impartial manner.22
In addition, Respondents shall make Farrell whole for any
losses of pay and benefits suffered as a consequence of Re-
spondents failure to grant or allow for the grant of Farrell’s past
union seniority, with interest at the rate prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), computed daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). Tax
compensation and Social Security reporting shall be in accord-
ance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143,
slip op. at 1 (2013).23
I shall also order that Respondents reimburse Farrell for any
reasonable legal fees he expended in seeking to convince Re-
spondents to file a grievance about his past seniority or restor-
ing it on their own. As mentioned above, such legal expenses
are a traditional remedy in this type of case. Such legal ex-
penses shall run from the date of Farrell’s engagement of At-
torney Frank Tunis until the filing of his unfair labor practice
charge with the Board.
On these findings of fact and conclusions of law, and on the
entire record herein, I issue the following recommended24

22 Nothing in this remedy should prevent Respondents from seeking
or implementing in futuro changes to the seniority provision of the
collective bargaining agreement, provided such changes do not violate
their duty of fair representation.
23 Since Farrell returned to work with his past company seniority in-
tact, it appears that his only monetary losses were pay for lost hours due
to his erroneous union seniority.
24 If no exceptions are filed, as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
Respondents, the International and Local 129, their officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Arbitrarily and discriminatorily refusing to process a
grievance with respect to employee Joseph Farrell’s past union
seniority and/or failing to grant him such past seniority on their
own, with the approval of the Employer.
(b) In any like or related manner, restraining, or coercing
employees in the exercise of their rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act:
(a) Immediately grant Joseph Farrell’s past union seniority
to the date of his original hire, and, to the extent necessary,
promptly request Farrell’s employer to concur with that grant of
past seniority.
(b) Make Joseph Farrell whole for any losses of pay or ben-
efits he may have suffered by the unlawful denial of his past
union seniority, in the manner set forth in the remedy section of
his decision.
(c) Reimburse Joseph Farrell for the reasonable legal fees
expended in connection with his use of a private attorney from
the date of his engagement of such attorney to the date he filed
his first charge in this case.
(d) Within 14 days after service by the Region, post at their
business offices and meeting places copies of the attached no-
tices marked as “Appendix A” and “Appendix B,” as appropri-
ate.25 Copies of the notice, on forms provided by the Regional
Director of Region 4, after being signed by the Respondents’
authorized representative, shall be posted by the Respondents
and maintained for 60 consecutive days in conspicuous places
including all places where notices to members are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as email, post-
ing on an intranet or an internet site, and/or other electronic
means, if Respondents customarily communicate with members
by such means. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn statement of a responsible official on
a form provided by the Region attesting to the steps the Re-
spondent has taken to comply.
Respondent Local 129, its officers, successors and assigns,
shall also cease and desist from attempting to cause Joseph
Farrell’s Employer to discriminate against him because of his
protected concerted activity, and, in any like or related manner,
restraining or coercing employees in the exercise of their rights

mended order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be waived for all purpos-
es.
25 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 BOARD18
guaranteed by Section 7 of the Act.
Dated, Washington, D.C. June 4, 2018
APPENDIX A
NOTICE TO MEMBERS
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 no-
tice.
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 activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT arbitrarily or discriminatorily refuse to process
grievances with respect to employee Joseph Farrell’s past union
seniority and/or fail to grant him such seniority on our own,
with the approval of his employer.
WE WILL NOT, in any like or related manner, restrain or co-
erce employees in the exercise of rights guaranteed under Sec-
tion 7 of the Act.
WE WILL immediately grant Joseph Farrell’s past union sen-
iority to the date of his original hire, and, to the extent neces-
sary, request Farrell’s employer to concur.
WE WILL make Joseph Farrell whole for any losses of pay or
benefits he may have suffered because of our unlawful denial
of his past union seniority, with interest.
WE WILL reimburse Joseph Farrell for reasonable legal fees
he expended because of his need to hire a private attorney to
help resolve his seniority issue.
UNITED GOVERNMENT SECURITY OFFICERS OF
AMERICA INTERNATIONAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CB-192246 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
APPENDIX B
Notice To Members
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT arbitrarily or discriminatorily refuse to process
grievances with respect to employee Joseph Farrell’s past union
seniority and/or fail to grant him such seniority on our own,
with the approval of his employer.
WE WILL NOT attempt to cause employee Joseph Farrell’s
employer to discriminate against him for exercising his rights
under the Act.
WE WILL NOT, in any like or related manner, restrain or co-
erce employees in the exercise of rights guaranteed under Sec-
tion 7 of the Act
WE WILL immediately grant Joseph Farrell’s past union sen-
iority to the date of his original hire, and, to the extent neces-
sary, request Farrell’s employer to concur.
WE WILL make Joseph Farrell whole for any losses of pay or
benefits he may have suffered because of our unlawful denial
of his past union seniority, with interest.
WE WILL reimburse Joseph Farrell for reasonable legal fees
he expended because of his need to hire a private attorney to
help resolve his seniority issue.
LOCAL 129 OF THE UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA INTERNATIONAL 129
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/04-CB-192246 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.