Central Security Services

239 315 NLRB No. 34 CENTRAL SECURITY SERVICES 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. 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. In adopting the judge’s findings that the Respondent’s discipline of Brady and Clarke and discharge of Brady violated Sec. 8(a)(1) of the Act, we find, contrary to the judge, that Wright Line, 251 NLRB 1083 (1980), is applicable. Applying the analysis of that case, we find that the General Counsel made out a prima facie case and that the Respondent did not either rebut it or establish the affirma- tive defense allowable under Wright Line. Additionally, we adopt the judge’s finding that the Respondent treated employees Brady and Clarke in a disparate manner when it disciplined them for circulating, discussing, and soliciting coworkers’ signatures regarding a letter about the employees’ terms and condi- tions of employment. We also adopt the judge’s finding that the Re- spondent failed to establish that Brady left his guard post at a time that he was supposed to have been working in order to solicit em- ployee Banda to sign the letter. We decline, however, to adopt the judge’s apparent alternative rationale that even if Brady had left his post while he was supposed to have been working, discipline of him for this conduct would have constituted disparate treatment. While the evidence shows that the Respondent’s employees routinely en- gaged in solicitation and discussion activities for nonwork purposes during working hours, it was not shown that they left their assigned posts at times when they were supposed to have been working in order to engage in such activities. 2 As part of his remedy, the judge provided that the Respondent shall ‘‘offer Brady reinstatement to his former or a substantially equivalent position.’’ We shall modify the judge’s reinstatement lan- guage to accord with that traditionally used by the Board. 3 The judge’s description of the contract as having a 5-year term but reserving to the USMS an annual right to cancel is in error. Central Security Services, Inc. and John E. Brady. Case 20–CA–22502 September 30, 1994 DECISION AND ORDER BY MEMBERS STEPHENS, DEVANEY, AND BROWNING On June 24, 1992, Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions as modified and to adopt the recommended Order as modified.2 We are adopting in large part the decision of the ad- ministrative law judge. Several modifications are noted in footnote 1, supra, however, and we set forth at greater length in section II below our reasons for not adopting all of his recommendations with respect to certain of the Respondent’s rules of conduct alleged as violations of Section 8(a)(1) of the Act. For the rea- sons stated in section I below, we agree that we have jurisdiction over the Respondent. In so doing, we reject the Respondent’s contention that the control exercised by the United States Marshals Service (USMS) over the Respondent’s labor relations and the working con- ditions of the Respondent’s court security officers (CSOs) is so pervasive that meaningful collective bar- gaining with a labor organization representing the CSOs would not be practical and that therefore the Board’s assertion of jurisdiction is improper under the test of Res-Care, Inc., 280 NLRB 670 (1986). I. JURISDICTIONAL ISSUE A. Pertinent Factual Findings The Respondent is in the business of providing secu- rity services. In this case, pursuant to a contract with the USMS, an agency of the Federal Government, the Respondent provided security services at Federal court- houses within the jurisdiction of the United States Court of Appeals for the Ninth Circuit. The contract between the USMS and the Respondent stated that the USMS had responsibility for Federal court security and needed skilled security officers to provide a ‘‘daily de- terrent and reactionary force’’ against unauthorized ac- tivities directed toward court personnel and property. The USMS contracted with the Respondent to provide ‘‘except as otherwise specified . . . all necessary man- power, supervision, transportation, and clothing to per- form court security services for each USMS District covered by this award.’’ The contract, which began in 1988, was for 1 year and granted the USMS an option to renew annually for a total duration of no more than 5 years.3 The contract required the Respondent to provide not only CSOs but also an onsite supervisor at each facility. Additionally, the Respondent was required to have a contract man- ager available at all times for such purposes as re- directing CSOs in their duties, removing CSOs from their posts, and receiving and executing directions from the USMS. The CSOs were assigned to fixed posts and roving patrols within court buildings. As provided by the contract, CSOs received special, lim- ited deputation through the USMS empowering them to enforce Federal law on Federal property in perform- ance of contract duties during normal duty hours. The contract incorporated CSOs’ wage rates, includ- ing annual increases, that the Respondent had submit- ted in the wage compensation plan required as part of its contract proposal. The Respondent was prohibited from paying lower wages unless it obtained USMS ap- proval for reductions in its compensation plan. The Re- spondent was free to pay wages greater than the rates specified in the plan. The Respondent, however, would not be reimbursed by the USMS for amounts over the 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 41 U.S.C. § 351 et seq. 5 The judge found that upon the USMS’s acceptance of the Re- spondent’s bid, the wage and benefit schedule contained in that bid became fixed, subject to increase only on DOL adoption of an area prevailing wage exceeding the Respondent’s wage and benefit sched- ule. As indicated above, however, the evidence shows that the wage and benefit schedule set only the Respondent’s reimbursement rate from the USMS; it did not bar the Respondent from paying its CSOs a higher rate. contract rates without prior approval of the USMS. Nicholas Laporte, the Respondent’s vice president for administration, testified that the Respondent could in- crease the CSOs’ hourly wages above the rate the Re- spondent was reimbursed by the USMS, ‘‘but we don’t as a rule do that’’ because ‘‘we couldn’t afford it.’’ As the contract was subject to the Service Contract Act of 1965,4 the wage rates could not be below the prevailing area wage determined by the Secretary of Labor. The contract provided, in a section concerning multiyear and option contracts, that ‘‘[t]he minimum prevailing wage determination, including fringe bene- fits . . . current at the beginning of each renewal op- tion period, shall apply to any renewal of this con- tract.’’ If the prevailing wage increased to a level above that set in the contract, the Respondent would be required to pay no less than the prevailing wage and would be reimbursed at the prevailing wage rate by the USMS. The wage determination also mandated certain mini- mum fringe benefit levels for health and welfare, vaca- tions, and number of holidays. However, the Respond- ent had discretion to pay its CSOs a specified hourly amount in lieu of health and welfare coverage. Addi- tionally, the Respondent was not prohibited from ex- ceeding the minimum benefit levels or from providing additional types of benefits. According to Laporte, the Respondent provided its CSOs 3 days of bereavement leave, which the wage determination did not require.5 When the Respondent began work under its contract with the USMS, it hired the CSOs who had been em- ployed by the prior contractor. In filling job openings that subsequently occurred, the Respondent advertised the jobs, gathered applications, interviewed applicants, and had them complete application forms provided by the USMS. To be hired, applicants had to meet train- ing, experience, and medical requirements set by the USMS. The Respondent decided which applicants’ forms to submit to the USMS for background inves- tigation. The contract provided that a CSO could not begin work prior to passing the USMS’ preliminary background investigation. After a further investigation, the USMS, if not satisfied, could require the CSO’s re- moval from duty. On the job, CSOs received work assignments and directions from lead CSOs employed by the Respond- ent. As provided by the contract, USMS personnel did not usually issue directions to a CSO except in an emergency. Rather, USMS officials communicated their wishes to the Respondent’s contract manager or a lead CSO. According to Lead CSO James Perkins, the Respondent’s lead CSOs decided which CSO to as- sign to each post and transferred CSOs from one loca- tion to another without seeking approval of USMS per- sonnel. The CSOs’ paychecks were issued by the Re- spondent. The USMS, however, was involved with the Re- spondent’s operations under the contract in a number of respects. Pursuant to the contract, the USMS deter- mined the location and number of CSO posts, the du- ties to be performed at each post, the hours of cov- erage and workshifts, and the length of CSOs’ breaks and lunch periods. The USMS also required that CSOs sign in when reporting for duty and sign out at the end of the work day and determined when overtime would be worked. The contract also set forth a dress code for CSOs. Additionally, the contract contained a ‘‘Removal from duty/replacement of CSOs’’ clause providing that the USMS could require the contractor to remove from the worksite any employee disqualified for suitability or security reasons or found to be unfit for the per- formance of security duties. The clause specified 11 types of misconduct or delinquency that could result in a determination of unfitness, such as neglect of duty, disorderly conduct, theft, and misuse of weapons. The contract also contained a ‘‘Standards of Con- duct’’ clause providing that the contractor was respon- sible for ‘‘maintaining satisfactory standards of em- ployee competency, conduct, appearance, and integ- rity’’ and for taking such disciplinary action as nec- essary. The clause further provided that the USMS code of conduct would ‘‘provide the Contractor guid- ance in developing a standard for employees under this contract’’ and that the USMS could require the con- tractor to remove any CSO from CSO duties for dis- regard of the code of conduct. The USMS code of conduct was set forth in an attachment to the contract. Additionally, a contract clause concerning the contract manager included a requirement that the contract man- ager enforce CSOs’ adherence to the ‘‘Standards of Conduct’’ clause. Laporte testified that the Respondent had terminated CSOs at the ‘‘implied or express direction’’ of the USMS and that the Respondent had no private con- tracts in northern California during 1988 through 1989 (the period during which the events at issue in this case occurred), although it did have a private contract in that area in 1991. Deputy United States Marshal Donald Davey, who was the USMS’ district court se- curity coordinator in San Francisco, testified that on two or three occasions the USMS had directed the Re- spondent to ‘‘let one of the CSOs go.’’ 241 CENTRAL SECURITY SERVICES 6 The employer in Res-Care had a contract with the U.S. Depart- ment of Labor (DOL) to operate a residential Job Corps center. The employer submitted to DOL a detailed proposal, including a list of job classifications, a labor grade schedule, and a salary schedule set- ting minimum and maximum wage rates for each labor grade. DOL also asked the employer to submit its personnel policies, including fringe benefits. Once the employer’s contract proposal was accepted, the employer could not change wage ranges or fringe benefits with- out DOL approval. DOL also retained substantial control over other aspects of the employer’s personnel policies. 7 The employer in Long Stretch had a contract with a state agency to operate a juvenile residential facility. The state agency reviewed the salaries paid by the employer as part of the annual budget proc- ess and issued general cost guidelines suggesting salary ranges for each job classification. The state agency’s actual involvement in set- ting the wages paid by the employer was limited, however, to rare investigation and discussion of whether the employer was paying ‘‘grossly unfair’’ salaries. The state agency also reviewed the em- ployer’s benefits but only to insure that certain types of benefits were provided, without regard to amount. 8 PHP Healthcare Corp., 285 NLRB 182 (1987), cited by the Re- spondent, is distinguishable in that there, as in Res-Care, the govern- mental entity directly controlled the minimum and maximum wages and step increases of the contractor’s employees. B. Discussion As established in National Transportation Service, 240 NLRB 565 (1979), the Board will assert jurisdic- tion over an employer providing services to a govern- mental entity that is itself exempt from the Board’s ju- risdiction unless the employer lacks sufficient control over the employment conditions of its employees to enable it to bargain with a labor organization as their representative. In Res-Care, Inc., above, the Board re- affirmed and clarified the National Transportation test. The Board stated that it would ‘‘examine closely not only the control over essential terms and conditions of employment retained by the employer, but also the scope and degree of control exercised by the exempt entity over the employer’s labor relations.’’ 280 NLRB at 672. The Board noted a core group of basic bargain- ing subjects and stated that ‘‘if an employer retains control over decisions affecting those subjects, mean- ingful bargaining is possible.’’ Id. at 674. Finding that the exempt governmental entity retained control over the primary elements of wages and bene- fits as well as other aspects of the employer’s person- nel policies, the Board in Res-Care declined to assert jurisdiction.6 In a companion case, Long Stretch Youth Home, 280 NLRB 678 (1986), the Board distinguished Res-Care and asserted jurisdiction based on that em- ployer’s retention of sufficient control over the essen- tial terms and conditions of employment.7 Subsequently, in Community Transit Services, 290 NLRB 1167 (1988), the Board clarified that Res-Care did not ‘‘stand for the proposition that the employer must retain control over each of the economic aspects of its labor relations if meaningful bargaining is to be possible.’’ Id. at 1170 fn. 5. The Board indicated in Community Transit, however, that control over solely noneconomic terms would not be sufficient. It is well established that ‘‘[a]n employer seeking to avoid the Board’s exercise of jurisdiction carries the burden of showing that it is not free to set the wages, fringe benefits, and other terms and conditions of em- ployment for its employees.’’ R. W. Harmon & Sons, 297 NLRB 562, 563 (1990), citing Firefighters, 292 NLRB 1025, 1026 (1989). We find that the Respond- ent has failed to satisfy this burden. We find that the Respondent is largely free to set the wages and benefits of its CSOs. In formulating its contract proposal, the Respondent chose the wage rates that were incorporated in the contract. Once adopted, these wage rates became a minimum but did not pro- hibit the Respondent from compensating its CSOs at higher rates. That the Respondent ‘‘as a rule’’ did not increase wage rates above the reimbursement rate pro- vided in its contract with the USMS does not establish that the Respondent was prohibited from doing so but only that it preferred not to do so. Thus, unlike in Res- Care, no maximum limits were imposed on wages the Respondent could pay.8 Similarly, the Respondent’s contract required a certain minimum level of benefits, but the Respondent was not prohibited from exceeding that level. Even with regard to the mandated health and welfare benefits, the Respondent had the option of providing either the benefits themselves or a cash equivalent. Additionally, the Respondent’s contract with the USMS was subject to the Service Contract Act of 1965. In several prior cases, the Board has found that the Service Contract Act does not bar meaningful bar- gaining but, rather, accommodates it. As the Board ex- plained in Dynaelectron Corp., 286 NLRB 302 (1987), the Service Contract Act provides for substitution of collectively bargained wages and benefits for the pre- vailing compensation rates set forth in wage deter- minations. See Koba Associates, 289 NLRB 390, 393 (1988); Old Dominion Security, 289 NLRB 81 (1988); see also FKW, Inc., 308 NLRB 598 (1992). Thus, ‘‘if during the term of the contract, the [Respondent] were to enter into a collective bargaining agreement . . . the collectively bargained rates would become the new wage determination at the next renewal period.’’ Koba Associates, supra at 394 (fn. omitted). As noted above, the Respondent’s contract with the USMS provided for annual renewal periods, with the wage determination current at the beginning of each period to apply to the renewal. There is an exception to the Service Contract Act’s requirement that collectively bargained wage rates and benefits be incorporated in the wage determination. The DOL will not adopt such rates if they are not the result of arm’s-length negotiations or if the Secretary of Labor finds, after a hearing, that the wages and ben- efits clearly are ‘‘substantially at variance’’ with those 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9 The court of appeals in Hicks v. NLRB (Ebon Research Systems), 880 F.2d 1396, 1399 (D.C. Cir. 1989), rejected the Union’s conten- tion there that the Service Contract Act would automatically incor- porate into an existing contract any wage increases derived from col- lective bargaining. We need not pass on that proposition here. Re- gardless of whether the Service Contract Act requires incorporation of subsequently negotiated wage increases into an existing contract, that Act clearly provides for incorporation of such increases into subsequent contracts. Thus, under the Respondent’s contract, such increases could be included in future 1-year contract renewals, which would occur within a fairly short period of time. In any event, the court’s concern that adopting into government contracts the wage terms of subsequently negotiated collective-bargaining agreements would provide a means ‘‘to milk the government without limit’’ at no cost to the contractor is addressed by the above-noted exception to the Service Contract Act providing that the DOL will not incor- porate wage rates substantially at variance with those prevailing in the area or not the product of arm’s-length negotiations. See Dynaelectron Corp., 286 NLRB at 304. 10 Thus, Southwest Ambulance of California, 295 NLRB 125 (1989), cited by the Respondent, is inapposite. In that case, the Board found that the contractor had little or no flexibility regarding personnel costs and that the governmental entity had rejected the contractor’s proposed wage increase for its current contract. The Board distinguished Old Dominion Security, 289 NLRB 81 (1988), where, as here, there was no evidence that the exempt entity would have disallowed expenditures for higher wages and fringe benefits arrived at through collective bargaining. 11 The Respondent’s reliance on Thums Long Beach Co., 295 NLRB 101 (1989), is misplaced. There the Board declined to assert jurisdiction over a contractor that could not engage in meaningful collective bargaining because the governmental entity had the ‘‘final say’’ over the wages and benefits of the contractor’s employees and retained control of the very matter over which the contractor was al- leged to have unlawfully refused to bargain, the subcontracting of work. In the present case, however, we have found that the Respond- ent is largely free to set the wages and benefits of its CSOs and there is no refusal-to-bargain allegation because the employees are unrepresented. prevailing in the area. See Dynaelectron Corp., supra at 304. The Board has found that Congress considered such circumstances to be unusual. It has noted, how- ever, that even if a government contractor were forced to absorb collectively bargained wage increases, this situation would be no different from that facing any private company working on a fixed-price contract at the time a new collective-bargaining agreement is ne- gotiated and that, in any event, the contractor could bargain for language in the collective-bargaining agree- ment protecting it if the rates were not incorporated in a revised wage determination.9 Id. at 305. Moreover, in the present case, there is no evidence that collec- tively bargained wage and benefit increases would not have been incorporated in the wage determinations here. See Old Dominion Security, supra at 82.10 The Respondent also has failed to show that it did not retain control over many of its CSOs’ non- economic terms and conditions of employment. Thus, the Respondent solicited, screened, and interviewed job applicants and decided which applications to forward to the USMS for security checks. The Respondent had supervisors present at facilities where its CSOs were stationed, and the Respondent’s supervisors, rather than USMS personnel, normally directed and super- vised CSO activities. Under the contract, the Respond- ent was responsible for maintaining standards of em- ployee competency, conduct, appearance, and integrity and taking disciplinary action to enforce these stand- ards. While the USMS could disapprove the hiring of an applicant as a CSO and could order the Respondent to remove a CSO, this did not preclude the Respond- ent’s retaining that individual in another capacity, such as to perform guard service for another client. More- over, the Board has found a governmental entity’s pos- session of authority to request a contractor to dismiss an employee did not preclude the Board’s assertion of jurisdiction over the contractor. See FKW, Inc., 308 NLRB 598 (1992); Old Dominion Security, 289 NLRB at 83; Dynaelectron Corp., 286 NLRB at 305. The Re- spondent’s argument that the USMS’s control over matters such as employment qualifications, dress codes, security clearances, work shifts, and CSOs’ du- ties precludes the Respondent from engaging in mean- ingful collective bargaining is unpersuasive. In Old Dominion Security, the Board found similar restrictions to be operational controls necessary to ‘‘ensure con- tract compliance and maintenance of security measures at a secure facility,’’ 289 NLRB at 83, and not to ne- gate the employer’s ability to engage in meaningful collective bargaining.11 We also find without merit the Respondent’s argu- ments that the Board should not assert jurisdiction over the Respondent because the USMS and the Respondent are joint employers and because of the essential Fed- eral role performed by the CSOs. As the Respondent acknowledges, it is well established that, in determin- ing whether to refrain from asserting jurisdiction over a government contractor, the Board does not look to whether there is a joint employer relationship between the employer and the governmental entity. Res-Care, 280 NLRB at 673 fns. 12 & 14. Similarly, the Board long ago rejected the approach of refraining from as- serting jurisdiction based on whether the employer’s operations were intimately related to a governmental function. See National Transportation Service, 240 NLRB 565 (1979). Indeed, from the perspective of whether a governmental function is being performed, the role performed by the Respondent’s CSOs is indis- tinguishable from the security services the employer performed for the U.S. Navy in Old Dominion Secu- rity, above, a case in which the Board asserted juris- diction over the employer. And, more generally, the Board has repeatedly asserted jurisdiction over em- ployers providing security services for the Federal Government. See Champlain Security Services, 243 NLRB 755 (1979); Atlas Guard Service, 237 NLRB 1067 (1978); Federal Services, 115 NLRB 1729 243 CENTRAL SECURITY SERVICES 12 Indeed, we note that the Board has asserted jurisdiction over the Respondent in two prior cases concerning its operations under con- tracts with the USMS similar to that in the present case. See Central Security Systems, 21–RC–18978 (June 11, 1992) (unpublished order denying request for review of Regional Director’s Decision and Di- rection of Election); Central Security Systems, Case 1–RC–19384 (1990) (same). Although the case captions indicate a slightly dif- ferent name for the employer in those cases, it is clear from the record that the Respondent is the same entity as that employer. Member Browning agrees that the Respondent has not met its bur- den of proving that it is not subject to the Board’s jurisdiction under the test set forth in Res-Care, Inc., supra, 280 NLRB 670. In doing so, however, Member Browning does not pass on the continuing va- lidity of the Res-Care test. 13 The Respondent excepts to the judge’s finding the Respondent’s rules 8, 23, and 29 ‘‘void and unenforceable.’’ As indicated above, we are dismissing the complaint allegation regarding rule 23. With respect to rules 8 and 29, we note that while the judge used the ‘‘void and unenforceable’’ phraseology in his analysis, he did not do so in his conclusions of law, remedy, recommended Order, or notice to employees. Rather, his recommended Order requires the Respond- ent to cease and desist from maintaining and enforcing rules which interfere with, restrain, or coerce employees in the exercise of their Section 7 right to engage in concerted activities for mutual aid or protection. Accordingly, the judge’s decision does not order the voiding of these rules in their entirety. We find this remedy appro- priate in the circumstances of this case. 14 The judge’s conclusions of law are modified accordingly. (1956); see also U.S. Corrections Corp., 304 NLRB 934, 937 at fn. 32 and accompanying text (1991). Based on the foregoing, we find that the Respondent has failed to prove that it did not retain sufficient con- trol over its CSOs’ wages, benefits, and other terms and conditions of employment to engage in meaningful collective bargaining. Accordingly, we will assert juris- diction over the Respondent.12 II. LAWFULNESS OF PARTICULAR RULES IN THE RESPONDENT’S CODE OF CONDUCT In his decision, the judge found, inter alia, that rules 8, 23, and 29 of the Respondent’s code of conduct vio- lated Section 8(a)(1) of the Act. We agree that rules 8 and 29 are violative, but we reverse as to rule 23.13 Rule 23 required the Respondent’s CSOs to: Not make statement(s) about fellow employees or officials with knowledge of the falseness of the statement or with ruthless disregard of the truth which would be a defamatory falsehood made with malice. The judge did not find rule 23 to have played any part in the Respondent’s discipline of CSOs Brady and Clarke or its discharge of Brady, all of which the judge found unlawful. Rather, he found the Respond- ent’s maintenance of rule 23 to be unlawful per se. The cases on which the judge relied in finding the rule violative establish that ‘‘within the area of concerted activities, false and inaccurate employee statements are protected so long as they are not malicious,’’ Wabeek Country Club, 301 NLRB 694, 699 (1991), quoting American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978), and that, therefore, work rules prohibiting merely false statements violate Section 8(a)(1). It is also well established, however, that ‘‘false statements that are knowingly false and therefore malicious are unprotected.’’ Radisson Muehlebach Hotel, 273 NLRB 1464 (1985). The Respondent’s rule 23 did not prohibit state- ments that were merely false. Rather, the prohibition of that rule was much narrower. It prohibited only those statements made ‘‘with knowledge of the falseness of the statement or with ruthless disregard of the truth which would be a defamatory falsehood made with malice.’’ Because such statements are not protected, see Radisson Muehlebach Hotel, above, we dismiss the allegation that rule 23 violated Section 8(a)(1) of the Act.14 The judge found that the Respondent’s rule 29 vio- lated Section 8(a)(1). Rule 29 provided that ‘‘[o]nce on duty, the carrying and reading of any type of literature is strictly forbidden.’’ We adopt the judge’s finding, but only on the basis that the rule was overbroad in that it reasonably could be understood to mean that CSOs were prohibited from carrying or reading lit- erature concerning union or other protected concerted activity from the time that they came on duty or began their shift, including during breaks or meal periods. Cf. Norris/O’Bannon, 307 NLRB 1236, 1245 (1992) (am- biguity in work rule resolved against promulgator of rule); Southeastern Brush Co., 306 NLRB 884 fn. 1 (1992) (rule overbroad as ‘‘company time’’ could rea- sonably be construed as encompassing both working and nonworking time). We find unpersuasive the Respondent’s contention that its rules cannot be found to violate the Act be- cause the Respondent was required to adopt the USMS’ code of conduct, of which two of the rules at issue are a part. (The Respondent’s rule 29 is not con- tained in the USMS’ code of conduct.) The Respond- ent fails to cite any statute mandating that it adopt the USMS’ code of conduct. Rather, the Respondent’s as- serted obligation to adopt the USMS’ code of conduct is based solely on its contract with the USMS into which the Respondent entered voluntarily. As noted above, the Respondent’s contract with the USMS required the Respondent to maintain ‘‘standards of employee competency, conduct, appearance, and in- tegrity’’ and stated that the USMS code of conduct, contained in an attachment to the contract, would ‘‘provide the Contractor guidance in developing a standard for employees.’’ (Emphasis added.) This pro- vision did not require that the Respondent adopt the USMS’s code of conduct but only that the USMS code of conduct would give the Respondent ‘‘guidance’’ in developing employee standards. While the contract also reserved to the USMS the right to require the Re- 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 15 The Respondent required its CSOs to acknowledge in writing that they had received the Respondent’s code of conduct for CSOs and that any violation of the code of conduct rules could result in reprimand, suspension, or ‘‘loss of pay on termination.’’ However, the record does not support the judge’s statement that ‘‘[u]nder terms of the contract, USMS required each CSO to acknowledge and agree to comply with a code of conduct issued by USMS.’’ spondent to remove any CSO for disregard of the code of conduct, this provision did not require the Respond- ent itself to adopt the USMS’s code of conduct. Additionally, the Respondent notes that the USMS code of conduct contained the following introductory statement: The integrity of the Marshals Service is dependent upon the conduct of its individual employees. A minimum Code of Conduct is set forth below to provide guidance in achieving a greater individual standard. It is clear from its context and language that this state- ment was addressed to Marshals Service employees. Thus, its reference to a ‘‘minimum’’ code of conduct did not constitute a requirement that the Respondent adopt at a minimum the USMS’ code of conduct. Rather, it was an exhortation to Marshals Service em- ployees to achieve even a ‘‘greater individual stand- ard’’ than the ‘‘minimum’’ code of conduct set forth therein. In sum, while the contract required the Respondent to maintain standards of employee conduct and re- quired that the USMS code of conduct serve as guid- ance to the Respondent, it did not require the Respond- ent simply to adopt the USMS code of conduct, which is what the Respondent largely did. Indeed, there is no indication that the Respondent made any effort to tai- lor its code of conduct rules so as to take cognizance of its employees’ Section 7 rights.15 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Cen- tral Security Services, Inc., San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). ‘‘(a) Offer John E. Brady immediate and full rein- statement to his former job or, if that job no longer ex- ists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed. In addition, notify the United States Marshals Service in the manner set forth in the remedy section of the judge’s decision.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT interrogate you concerning the iden- tity of other employees engaged in concerted activities for employees’ mutual aid or protection or the extent of other employees’ engagement in those activities. WE WILL NOT tell you that you cannot engage in concerted activities for employees’ mutual aid and pro- tection or that an employee has been discharged for engaging in those activities. WE WILL NOT maintain and enforce rules which interfere with, restrain, or coerce you in the exercise of your right under the Act to engage in concerted ac- tivities for employees’ mutual aid or protection. WE WILL NOT disparately enforce rules against you for engaging in concerted activities for employees’ mutual aid or protection. WE WILL NOT warn, place on probation, suspend, discharge, or otherwise discipline you for engaging in concerted activities for employees’ mutual aid or pro- tection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer John E. Brady immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privi- leges previously enjoyed, WE WILL notify the United States Marshals Service that we erroneously advised them that John E. Brady abandoned his duty post to solicit an employee’s signature on a letter, and WE WILL request the United States Marshals Service ap- prove John E. Brady’s reinstatement and redeputiza- tion. WE WILL make John E. Brady whole for any loss of earnings and other benefits resulting from the dis- crimination we practiced against him for engaging in 245 CENTRAL SECURITY SERVICES 1 Read 1989 after further date references omitting the year. 2 While every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based on my examination of the entire record, my observation of the witnesses’ demeanor while testifying, and my evaluation of the reliability of their testimony; therefore any testimony in the record which is in- consistent with my findings is hereby discredited. 3 Associated Charter Bus Co., 261 NLRB 448 (1982); Res-Care, Inc., 280 NLRB 670 (1986); PHP Health Care Corp., 280 NLRB 182 (1987); Southwest Ambulance of California, 295 NLRB 125 (1989); Thum’s Long Beach Co., 295 NLRB 101 (1989); Career Systems Development Corp., 301 NLRB 436 (1991). 4 Long-Stretch Youth Home,, 280 NLRB 678 (1986); ARA Serv- ices, 283 NLRB 602 (1987); Dynalectron Corp., 286 NLRB 302 (1987); Old Dominion Security, 289 NLRB 81 (1988); Career Sys- tems Development Corp., 301 NLRB 434 (1991); U.S. Corrects Corp., 304 NLRB 934 (1991); Hicks v. NLRB, 964 F.2d 11 (D.C. Cir. 1992), affg. sub nom. Ebon Research Systems, 302 NLRB 762 (1991), and 290 NLRB 751 (1988). 5 Thum’s Long Beach Co., id. concerted activities for employees’ mutual aid or pro- tection, less any net interim earnings, plus interest. WE WILL remove from our records any record of the discipline we levied against John E. Brady and Edward Clarke for engaging in concerted activities for employ- ees’ mutual aid or protection and advise Brady and Clarke in writing that this has been done and that their engagement in those activities shall have no effect on their employment. CENTRAL SECURITY SERVICES, INC. Jonathan J. Seagle, for the General Counsel. Roger Jeanson, Esq. (Berman, Berkley & Lasky), of San Francisco, California, for Central Security. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On Au- gust 15, 16, and 19, 1991, I conducted a hearing at San Fran- cisco, California, to try issues raised by a complaint issued on April 3, 1989, based on a charge filed by John E. Brady, an individual, on February 17, 1989, and amended on March 31, 1989.1 The complaint alleged Central Security Services, Inc. (Re- spondent) at pertinent times was an employer engaged in a business affecting interstate commerce as defined in Section 2 of the National Labor Relations Act (the Act) and commit- ted various violations of Section 8(a)(1) of the Act. The Respondent in its answer to the complaint contended the National Labor Relations Board (the Board) should re- frain from exercising its jurisdiction in this case on the ground it and its affected employees were engaged in render- ing security services to an entity exempted from the coverage of the Act (United States Marshals Service—USMS here- after) which exercised pervasive control over the core em- ployment conditions of those employees. The Respondent in its answer also denied committing any violation of the Act. The issues created are: (1) whether the Board should re- frain from exercising its jurisdiction in this case and (2) if not, whether the Respondent committed the alleged acts, thereby violating the Act. The General Counsel and the Re- spondent appeared by counsel and were afforded full oppor- tunity to adduce evidence, examine and cross-examine wit- nesses, argue, and file briefs. Both counsel filed briefs. Based on my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following FINDINGS OF FACT2 I. JURISDICTIONAL ISSUE At all pertinent times the Respondent, a New York cor- poration headquartered in New York, has been engaged in the business of providing security services for profit. Its major business has been providing those services, by con- tracts with USMS, at Federal district and appellate court- houses within the jurisdiction of the First, Second, Third, Ninth, Eleventh, and District of Columbia Circuit Courts of Appeal. In 1988 the Respondent supplanted Wackenhut Corpora- tion as the supplier of those services within the jurisdiction of the Court of Appeals for the Ninth Circuit, which encom- passes courthouses in northern California housing United States district courts and the Ninth Circuit Court of Appeals in San Francisco, Oakland, Santa Rosa, and San Jose, Cali- fornia. It is undisputed the Respondent satisfies the normal stand- ard for the exercise of the Board’s jurisdiction under Section 2 of the Act, for at all pertinent times the Respondent was a private, for-profit corporation which received in excess of $50,000 annually for the services it provided to an entity en- gaged in interstate commerce—USMS. The Board has refrained from exercising its jurisdiction over such private, for-profit employers when the control ex- ercised by the entity exempt from the Act’s coverage over the core employment conditions of those employer’s employ- ees was of such a degree, a labor organization representing those workers could not bargain meaningfully with those em- ployers over those conditions,3 and has exercised its jurisdic- tion over such employers when the employers had discretion over those core employment conditions.4 All but two of the cases just cited involved representation; i.e., a private, for-profit employer’s objection to proceeding to an election based on a union petition for certification as the exclusive collective-bargaining representative of the em- ployees of that employer, on the ground an entity exempt from coverage under the Act exerted such control over its employees’ core employment conditions the employer could not engage in meaningful bargaining with respect thereto. In one exception,5 the Board refrained from exercising its jurisdiction in a case involving an alleged unfair labor prac- tice complaint alleging the private, for-profit employer vio- lated Section 8(a)(5) of the Act by failing to bargain with the union representing a subcontractor’s employees over the ef- fect on the subcontractor’s employees of its cancellation of the subcontracting. The Board refrained from exercising its jurisdiction on the ground the exempt entity (the city of Long Beach, California) controlled what subcontractors the em- ployer could engage. In the other, the Board exercised juris- diction over a case alleging the private for-profit employer 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Hicks v. NLRB, supra. 7 Central Security Systems, Case 1–CA–28380 (1991). 8 The Respondent, as was customary, avoided time delays and re- cruitment costs by simply retaining all the CSOs employed by its predecessor. 9 Such deputization was necessary for the performance of CSO du- ties, i.e., carrying weapons, effecting arrests, etc. 10 The contract contemplated a 5-year term. USMS, however, re- served the unilateral right to cancel the contract at each anniversary date during the term of the contract. 11 The benefit schedule included a paid vacation benefit based upon years of service. The Respondent interpreted the requirement as limited to years in its service; USMS disagreed and insisted the Respondent grant paid vacations based on each CSO’s previous serv- ice for all contractors to whom USMS awarded contracts for the Northern California courts. The Respondent accepted the USMS in- terpretation, though USMS refused to reimburse the Respondent for the additional and unanticipated additional cost to the Respondent (which based its bid on its interpretation of the benefit provision). The contract provision relied upon by USMS stated the Respondent would not be reimbursed for labor costs exceeding those set forth in the wage and benefits schedule. violated Section 8(a)(1) and (3) by discharging an employee for engaging in union activities and interfering in employee engagement in union activities.6 In an apparent application of the latter cases in a case in- volving this employer,7 while the General Counsel refused to issue a complaint based on portions of a charge alleging Central Security violated Section 8(a)(5) and (1) of the Act by changing the hours of employment of security personnel performing services under a Central Security-USMS contract, on the ground USMS had and exercised the power to require the change—the General Counsel reserved ruling on whether to issue a complaint on the balance of the charge, alleging violations of other sections of the Act. In this case, the complaint alleged the Respondent violated Section 8(a)(1) of the Act by: (1) giving the impression it was surveilling concerted employee activity protected by the Act; (2) telling employees they could not engage in con- certed activities protected by the Act; (3) interrogating em- ployees concerning concerted activities protected by the Act; (4) telling employees an employee had been terminated for engaging in concerted activities protected by the Act; (5) maintaining and enforcing an unlawful no-solicitation, no- distribution rule; (6) suspending and discharging an em- ployee for engaging in concerted activity protected by the Act; and (7) disciplining another employee for engaging in concerted activity protected by the Act. Under the contract between the Respondent and USMS governing the services provided by the Respondent at the northern California courthouses, USMS determined: 1. The number and location of the posts to be manned by the court security officers (CSOs) employed by the Respond- ent. 2. The duties performed by the CSOs. 3. The CSOs’ duty hours and break times. 4. The number of CSOs the Respondent employed to render the services required. 5. The CSOs satisfaction the following requirements: (a) Graduation from a certified federal, state, county or local law enforcement training program, Military Police training program or the equivalent. (b) Completion of 3 years of employment as a certified law enforcement officer. (c) Satisfaction of specified physical standards, including height and weight requirements. (d) Demonstrates proficiency in weapons handling. (e) Compliance with a specified dress code and specified personal grooming standards. (f) Passing of a background security check.8 USMS also exercised sole and unilateral authority to grant, deny or rescind deputization of the CSOs as Deputy United States Marshals (and the issuance, refusal of issuance, and required return of badges or other forms of credentials estab- lishing such status).9 Under terms of the contract, USMS required each CSO to acknowledge and agree to comply with a code of conduct issued by USMS and empowered its agents, and reserved, unilateral and final power to direct the termination of any CSO on the basis of a unilateral determination by USMS the CSO engaged in misconduct, nonperformance, or failure to comply with its rules and regulations. With respect to wages and benefits, USMS required the Respondent to submit a wage and benefit schedule for the 5- year contract term10 and, upon USMS’ acceptance of the Re- spondent’s bid, that wage and benefit schedule became fixed, subject to increase only upon United States Department of Labor (DOL) publication of an area prevailing wage and benefit schedule exceeding the contract wage and benefit schedule,11 and then only upon USMS approval of the change necessitated by the DOL determination. Under the contract, the Respondent was responsible for the recruitment, screening, and hire of its prospective hires for work in the northern California courthouses, subject to a se- curity check and approval by USMS, but avoided the time and expense associated with that procedure by simply hiring, with USMS’ approval, the employees of its predecessor. The Respondent was also responsible under the contract for ‘‘maintaining satisfactory standards of employee com- petency, conduct, appearance and integrity and . . . respon- sible for taking such disciplinary action with respect to his employees as may be necessary.’’ In this case USMS revoked Brady’s deputization as a United States Marshal, required his surrender of his creden- tials, and advised that the Respondent Brady ‘‘had to go’’ on the basis of information provided by the Respondent and the Respondent alone engaged in the alleged unlawful acts of surveillance, interrogation, utterances of coercive statements, and impositions of discipline (including suspension, dis- charge, and reduction to probationary status) set forth as un- fair labor practices in the complaint, as well as the enforce- ment of rules allegedly violative of the Act. Were this a case in which a union was seeking, through a Board-conducted election, certification as the exclusive col- lective-bargaining representative of the Respondent’s north- ern California employees—or a bargaining order based on an alleged violation of Section 8(a)(5) of the Act—Board re- fusal to exercise its discretionary jurisdictional powers in this case might be warranted. This case, however, involves the alleged violation by the Respondent of Section 8(a)(1) of the Act by interference with, restraint and coercion of its employees, including dis- cipline and discharge, for engaging in concerted activities protected under Section 7 of the Act and the promulgation 247 CENTRAL SECURITY SERVICES 12 The complaint alleged, the answer admitted, and I find at all pertinent times Villella and Perkins were supervisors and agents of the Respondent acting on its behalf within the meaning of Sec. 2 of the Act. It was undisputed the lead CSOs exercised supervision and direction of the work of the CSOs at their respective locations and I therefore find and conclude the lead CSOs at all pertinent times also were supervisors and agents of the Respondent acting on its behalf within the meaning of Sec. 2 of the Act. 13 Clarke testified all such discussions occurred while he and those with whom he discussed the draft were off duty. His testimony is undisputed and is credited. and enforcement of rules inhibiting their exercise of their Section 7 rights. There are no reported cases where the Board has refrained from exercising its jurisdiction to determine the merits of a complaint alleging such unfair labor practices on the ground an entity exempt from Act coverage, acting on the basis of information supplied by the employer accused of committing the unfair labor practices in question, played a role in the commission of those alleged unfair labor practices, nor would it be reasonable to so refrain here, enabling the Re- spondent to escape liability for its acts. I therefore find and conclude at all pertinent times the Re- spondent was an employer engaged in commerce in a busi- ness affecting commerce within the meaning of Section 2 of the Act (based upon jurisdictional facts recited heretofore) and further find and conclude this is a case in which the Board should exercise its plenary jurisdiction to determine whether the Respondent committed the unfair labor practices alleged in the complaint, and, if so, determine the appropriate remedy therefor. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues raised by the complaint and the Respondent’s answer thereto are whether the Respondent violated Section 8(a)(1) of the Act by. 1. Giving employees the impression it was surveilling their engagement in concerted activities protected by the Act. 2. Interrogating employees concerning such engagement. 3. Telling employees they could not engage in such activi- ties. 4. Telling employees an employee had been terminated for engaging in such activities. 5. Maintaining and enforcing unlawful no-solicitation, no- distribution rules. 6. Issuing a disciplinary warning to an employee and plac- ing him on probationary status for engaging in concerted ac- tivities protected by the Act. 7. Suspending and discharging an employee for engaging in such activities. B. Facts As noted above, in 1988, the Respondent succeeded Wackenhut Corporation as the provider of CSO services to USMS in buildings housing Federal courtrooms in northern California and hired the Wackenhut employees previously performing those services to provide those services. James Perkins was retained by the Respondent as its site supervisor in overall charge of its northern California operations and li- aison with the United States Marshal in overall charge of se- curity at the northern California Federal courtrooms and courthouses. As required by the USMS-Respondent contract, the Respondent also designated a ‘‘lead CSO’’ as the imme- diate supervisor of the CSOs employed by the Respondent at each of the northern California courthouses. Perkins’ imme- diate supervisor, headquartered in southern California and in overall charge of all the Respondent’s operations within the Ninth Circuit, was Fred Villella.12 John Brady and Edward Clarke were two of the CSOs formerly employed by Wackenhut who were employed by the Respondent when it succeeded Wackenhut on the USMS contract covering the northern California courthouses. In 1988 both Brady and Clarke were employed at the Fed- eral building housing the United States District Court in San Francisco and were close friends. Perkins maintained his of- fice in the same building. In 1988 Perkins transferred Brady to the building housing the Ninth Circuit Court in San Francisco after Brady wrote a letter to the Respondent’s vice president complaining about Perkins’ reversal of an agreement by the lead CSO to an ex- change between Brady and another CSO of their posts for an hour in the afternoon, Perkins’ refusal to grant him a re- quested transfer to fill a post and placing a CSO junior to him in the requested post, whether there was a grievance procedure and whether the Respondent had a policy regard- ing the application of seniority to requests for transfers. Nei- ther the vice president to whom he addressed the letter nor any other management representative ever responded to Brady’s letter. Though the USMS-Respondent contract was effective in June 1988, by January 1989, the CSOs employed by the Re- spondent were still unaware of many terms of their present and future employment, and began questioning their imme- diate supervisors for that information, without success. After discussions among a number of the CSOs concern- ing their dissatisfaction over their inability to secure the de- sired information, in late January 1989 Brady drafted a letter based on those discussions, setting forth the information the CSOs wanted, made copies of the draft, circulated copies to CSOs at the northern California courthouses (including the lead CSOs) for discussion and suggestion, and discussed what the final version of the letter should be with CSOs and lead CSOs at the various courthouses, including Clarke. Clarke was an early supporter of the idea of appealing to the Respondent’s president for the desired information and supported its preparation and sending, in discussions with other CSOs at his station.13 The draft read as follows: Mr. Nicholas F. Pastoressa President Central Security Systems, Inc. Staten Island, N.Y. 10306 Mr. Pastoressa: This letter is being sent to you as a last resort. Sev- eral members of the court security unit have made nu- merous attempts using the chain of command to get an- swers to the following questions with no results. The questions we would appreciate you answering are as follows: 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 Clarke’s testimony to the foregoing was uncontradicted and is credited. 15 The United States Marshall in charge of security for the north- ern California Federal courts, Glen Robinson, and the Deputy United States Marshall designated as the contract liaison officer between the Respondent and USMS with respect to the northern California court- houses, Donald Davey, were also housed in the building. 1. How many vacation days are we entitled to? Are they prorated? 2. If so are they beginning with what contract? The first one or the current one. 3. How many sick days are we entitled to? Are they pro-rated? 4. Do we have Personal days? If so how many? Are they prorated? 5. Are we permitted to accrue our vacation and sick days? 6. Are we entitled to re-imbursement for shoes? sweaters that we purchase? We are interested in learning of the health and bene- fit plan the company offers. Please advise us of the grievance policy of CSSI, a letter was mailed to Mr. Paul Haughom Vice-President requesting information on the matter on August 20, 1988, however, Mr. Haughom has not acknowledged the letter as of this date. We will appreciate, whenever a change in the amount of money is made on our paychecks, whether greater or less, an explanation accompanying the check by way of an Inter-office memo. It has become ex- tremely difficult at times for us to know exactly what we are getting and what we are supposed to get. I do not know if you are aware of it or not but some of the personnel do not have a complete uniform. Some of the CSOs have brought some of these ques- tions to the attention of Mr. Fred Villella, California contract manager, it appears the questions have been heard with deaf ears or ignored. Requests for personnel to meet with Mr. Villella to discuss these questions when he is in San Francisco also have not been hon- ored. The undersigned members of the Court Security Unit of San Francisco, Oakland & the San Jose area will be grateful for your expeditious reply to this letter. Copies of the letter are to be mailed to the following people: Honorable Alfred T. Goodwin Chief Judge, U.S. Court of Appeals Honorable William A. Ingram Chief Judge Federal Court 450 Golden Gate Avenue San Francisco, CA Honorable Stanley Wiegel Senior Judge Federal Court 450 Golden Gate Avenue San Francisco, CA Glen Robinson United States Marshall Federal Bldg. 450 Golden Gate Ave. San Francisco, CA The attached ‘‘ROUGH DRAFT,’’ is for your pe- rusal. If you have any thoughts that you would like to have mentioned please write them and attach them to this letter for inclusion in the final letter. It has been suggested that the letter be signed in the following manner. Each person will print (legibly) his/her name then sign above it. The site worked at, will then be affixed by the signee. EXAMPLES: [Signature]John A. Doe JOHN A. DOE U.S. Court of Appeals San Francisco, CA [Signature] Mary Anderson MARY ANDERSON Federal Building San Jose, CA [Signature] Tom Horne TOM HORNE Federal Bldg. Oakland, CA [Signature] Ed Brown ED BROWN Federal Bldg. San Francisco, CA [Resp. Exh. 10] The lead CSO at the San Jose courthouse informed Perkins that Brady had prepared and was circulating and discussing the draft among the CSOs and furnished Perkins a copy of the draft. Perkins contacted Clarke, told Clarke he knew about the letter draft, identified Brady as its author, and asked if he was its coauthor. Clarke denied he was its coauthor. Perkins labelled Brady a ‘‘shit-disturber’’ and stated he had to trans- fer Brady once previously for ‘‘stirring up the troops.’’ Clarke asked Perkins to secure the information requested in the draft. Perkins replied he worked for the company, not for the CSOs, he wasn’t going to ask for the requested informa- tion, but he thought the Respondent was going to supply some information.14 Perkins supplied the copy of the draft he had received to Chief Deputy United States Marshall Richard Bippus, whose office was also in the Federal building housing the United States District Court in San Francisco.15 Bippus summoned Clarke to his office and told Clarke the letter could ‘‘cause problems’’ if it was sent to the judges listed as potential recipients of the letter and Davey, in a let- ter dated January 31 addressed to Villella, stated: This office is concerned that direct personal contact with officers of the courts, for whose security this of- fice and your employees are responsible, may be at- tempted in a manner inconsistent with the procedures normally utilized for such personnel matters. This office would view any such personal contact as outside the recognized chain-of-command for Court Security Offi- 249 CENTRAL SECURITY SERVICES 16 Brady’s testimony to this effect was uncontradicted and is cred- ited. cers, and demonstrating questionable standards of con- duct. Please look into this matter, and either disabuse this office of the notion that such unprofessional contact is being undertaken by an employee of Central Security Systems, Inc., or identify the person or persons that au- thored the unsigned note and/or letter. Villella responded by issuing a February 1 rule or direc- tive addressed to CSOs employed by the Respondent throughout the buildings housing Federal courts within the jurisdiction of the Ninth Circuit Court ordering all CSOs em- ployed by the Respondent at those courthouses to process any ‘‘[r]equests for information, assistance or lodging com- plaints . . . through the Lead CSOs’’; ‘‘the Lead CSOs will refer CSO initiated communications directly to the Contract Manager, Supervisor or Marshall representative, as appro- priate’’; and ‘‘if this channel is not satisfactory to individ- uals, communications may be addressed in writing through the Lead CSO to the following: Fred J. Villella, area Con- tract Manager, Central Security Systems, Inc., 531 Encinitas Blvd., Encinitas, CA 92024.’’; ‘‘CSOS ARE REMINDED THAT, AS EMPLOYEES OF CENTRAL SECURITY SYSTEMS, THEY MUST COMPLY . . . AND CONFORM WITH THE PROVISIONS PRE- SCRIBED FOR SUCH COMMUNICATIONS THROUGH THE CSSI CHANNELS. COMPLAINTS OR REQUESTS . . . RELATED TO CSO PERFORMANCE AND CONDITIONS UNDER THIS CONTRACT ARE TO BE CONDUCTED THROUGH THE CHANNELS DESCRIBED ABOVE.’’ After participating in discussions of the views and sugges- tions of various CSOs concerning the draft and Clarke’s re- port Bippus thought it would be inadvisable to send copies of the letter to the judges, over the weekend of February 4- 5, Brady prepared a revised, final version of the letter, elimi- nating the proposed sending of the letter to the judges and making other changes in line with the views and suggestions he had received. Brady dated the final version of the letter February 15, in order to provide time within which to secure signatures thereto of the CSOs who were interested in securing the re- quested information and in the hope the Respondent might furnish the requested information prior to that date (in view of Perkins’ comment to Clarke in late January that he thought the Respondent was going to supply some informa- tion), in which case it would be unnecessary to send the let- ter. Brady began contacting CSOs (including lead CSOs) at the northern California courthouses on Monday, February 6, to solicit the lead CSOs and CSOs stationed at the various courthouses to read and sign the letter. He signed the letter, secured the signatures of three other CSOs stationed at the courthouse where he was assigned, and secured the signature of CSO David Banda on February 7 at the Federal building housing the district court in San Francisco. He visited the building housing the Federal bankruptcy court in Oakland prior to shift starting time on February 9, but was unsuccess- ful in securing any signatures thereto when the lead CSO there (Leonard Bullock) declined his invitation to read and sign the letter (in the presence of two CSOs), stating Perkins had received the information the CSOs were seeking, with Brady replying in that case there was no need to send the letter and departing.16 Brady brought the letter to Clarke; Clarke signed it, gave it to another CSO for his reading and signing if he desired, and he signed it as well. The final letter, then, by February 9 had seven CSO signatures thereon. The letter read as fol- lows: February 15, 1989 Mr. Nicholas F. Pastoressa President Central Security Systems, Inc. 84 New Dorp Plaza Staten Island, N.Y. 10306 Mr. Pastoressa: This letter is being sent to you as a last resort. Sev- eral of the members of the court security unit have made numerous attempts using the chain of command to get answers to the following questions with no re- sults. The questions we would appreciate you answering are as follows: 1. How many vacation days a year are we entitled to? Are they pro-rated? 2. How many sick days are we entitled to? Are they pro-rated? 3. Do we have personal days? Are they pro-rated? 4. Are we permitted to accrue our vacation, sick days and personal days? 5. Are we entitled to re-inbursement for shoes and sweaters that we purchase as part of our uniform re- quirements? 6. Will we receive an increase in our hourly wage at the end of the contractual year, if so how much? We are interested in learning of the health and bene- fit plan the company is offering. Please advise us of the grievance policy of CSSI, a letter was mailed to Paul Haughom Vice-President re- questing information on the matter August 20, 1988 however, Mr. Haughom has not acknowledge the letter as of this date. We will appreciate, whenever a change in the amount of money is made on our paychecks, whether greater or less, an explanation accompany the check by way of an inter-office memo explaining the adjustment. At times it is difficult to determine what we are getting and what we are supposed to have. I do not know if you are aware of it or not but some personnel do not have complete uniforms. Some of the CSO’s have brought a few of these questions to the attention of Mr. Fred Villella, Califor- nia Contract Manager, requesting for personnel to meet with Mr. Villella to discuss these matters when he is in San Francisco have not been honored. It does not seem unreasonable to request a copy of benefits we are entitled to under the existing contract. We will appreciate a timely response to our inquires. Please note to whom we are sending copies of this letter. 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17 Perkins interpreted the comment as a request for Brady’s re- moval. Glen Robinson United States Marshal Northern District of California Mr. Fred Villella California Contract Manager Deputy Jim Davey Liaison Office U.S.M.S. Mr. Jim Perkins Supervisor Court Security Unit Mr. Jim Hicks Supervisor U.S. Court of Appeals In closing we ask that all information we are entitled to along with benefits for the part time personnel be sent to us in the same manner that the Code of Conduct was. Personnel requesting this information have affixed their signatures below and on the attached sheet. [G.C. Exh. 4] Neither Perkins nor the USMS officials were aware of the changes in the final letter from the draft, including the elimi- nation of the proposal to send copies of the letter to the judges. While Brady and Clarke were circulating, discussing, and soliciting CSO signatures to the final letter, Perkins was summoned by Robinson and Bippus and asked what he was doing about complying with Davey’s request either for assur- ance the CSOs were not preparing to send copies of their let- ter to the judges or identification of the author or authors of the letter. Perkins replied he hadn’t done anything yet. On February 9, Bullock reported to Perkins that Brady had been at the Oakland courthouse that morning, soliciting sig- natures to the letter. Perkins also received reports from other lead CSOs and CSOs to the same effect. He relayed that in- formation to Marshals Robinson and Bippus; they stated they would like to see Brady ‘‘go away,’’17 Perkins consulted with Villella, related his information concerning the activities of Brady and Clarke vis-a-vis the letters (he still suspected Clarke was a coauthor as well as a circulator of the letters) and his interpretation of the Marshals’ views. The two de- cided to suspend Brady while Perkins developed evidence concerning the activities of Brady and Clarke and Villella traveled to San Francisco for determination of what final ac- tion to take against the two. Perkins went to Brady’s duty station prior to Brady’s Feb- ruary 9 shift starting time (9:30 a.m.), stopped Brady from going to work and sought Brady’s admission he had cir- culated a petition among the CSOs. Brady denied he was cir- culating any petition. Perkins stated then Clarke must be lying to him, Brady then admitted he had been circulating a letter among the CSOs addressed to the Respondent’s presi- dent. Perkins told Brady he could not do that and was sus- pended, pending Villella’s arrival in San Francisco. Perkins returned to the building housing his and the mar- shals’ offices, reported to the latter Brady was the author and circulator of the letter and had been suspended pending fur- ther review and Villella’s arrival; the marshals repeated their earlier view they would like to see Brady ‘‘go away.’’ Perkins began interrogating lead CSOs and CSOs who pre- viously supplied him with reports concerning the activities of Brady vis-a-vis the preparation, circulation, discussion, and solicitation of signatures to the letters. He secured a written statement from the Oakland lead CSO (Bullock) on February 13, in which Bullock confirmed his February 9 oral report Brady came to the Oakland courthouse at about 8:35 a.m. (prior to starting time) and, in the presence of two CSOs, asked him to read and sign the letter; that he refused; and that neither of the other CSOs present read or signed the let- ter after hearing his refusal. Bullock gave no further details in his statement and was not called to testify. Perkins secured a second written statement from CSO David Banda on Feb- ruary 15, in which Banda confirmed an earlier oral report Brady contacted him in the basement of the building housing the San Francisco District Court at about 12:30 p.m. on Feb- ruary 7, asked him to read and sign the final letter, and that he complied with Brady’s request. Banda testified, corrobo- rating his written statement. Perkins testified, but did not relate what other lead CSOs told him in the course of his interrogations. The Respondent did not produce any statements taken from those interviewees. The Respondent produced Brady’s February 7 work sched- ule, calling for a lunchbreak between 1 and 2 p.m. and also produced Brady’s work record on February 7 showing he worked his scheduled 7-1/2 hours that day. The Respondent contended this evidence established Brady was AWOL (ab- sent without leave) from his duty post; i.e., abandoned his duty post during scheduled working hours. Brady corroborated Bullock’s statement and Banda’s state- ment and testimony, with one exception. He testified he so- licited Banda’s reading and signing of the letter during his lunchbreak, commenting it only took 5 minutes to travel be- tween his and Banda’s post. He also testified from time to time his lead CSO, James Hicks, permitted the CSOs under his supervision to vary from their schedules, covering their posts during such authorized departures from their schedule (by authorizing exchanges between CSOs, etc.). Brady’s work schedule for his February 7 shift, initialed by Brady and signed by Hicks, shows Brady worked his full 7-1/2- hour shift that day, and Hicks was not called to testify, which supports my finding and conclusion the Brady-Banda encounter occurred either during Brady’s scheduled lunch hour or during a Brady departure therefrom authorized by Hicks. I therefore find and conclude the Respondent failed to establish Brady was AWOL during the Brady-Banda en- counter. Even if I were to find and conclude to the contrary, undis- puted testimony established the lead CSOs and the CSOs during working hours regularly and frequently discussed non- work topics; lead CSOs and CSOs circulated and dis- cussed greeting cards, etc. and solicited signatures thereto; and lead CSOs solicited CSOs to attend various functions; all without censure, contrary instruction, or discipline, warrant- ing my further finding and conclusion that prohibition or dis- cipline for circulation, discussion, and solicitation of signa- tures to the letters here concerned constituted disparate treat- ment of employees engaged in those activities from the treat- 251 CENTRAL SECURITY SERVICES 18 Sec. C-8 of the USMS-Respondent contract provides: 8.1. The contracting officer or his representative may request the contractor to immediately remove any employee(s) from the worksite(s) should it be determined that individuals are being as- signed to duty who have been disqualified for either suitability or security reasons, or who are found to be unfit for the per- Continued ment of employees engaged in the similar conduct just de- scribed. Perkins supplied the Bullock and Banda statements to Marshals Robinson, Bippus, and Davey on securing the latter statement (on February 15). The marshals reiterated the view Brady ‘‘had to go.’’ On February 17, Villella and Perkins summoned Brady to a meeting. Perkins asked Brady if he knew why he was there. Brady replied all he knew was that he had been sus- pended. Perkins stated Brady had circulated a petition during working hours, he could not do that, and that he was dis- charged for doing so. Brady responded he would see them in court and departed. Clarke was summoned to meet with Villella and Perkins following the Brady discharge. Clarke was handed a written, disciplinary warning for circulating the letters and requested to sign the warning notice, which he did. The notice read as follows: February 13, 1989 TO: CSO Edward R. Clarke U.S. Courthouse, San Francisco, CA FROM:SCSO James Perkins San Francisco, CA RE: Continued Employment This memo, containing your signed acknowledge- ment, is a confirmation of a meeting we had this date concerning your continued employment as a Court Se- curity Officer with Central Security. You have been told that your retention is conditional, and you have been placed on probationary status for a period of at least three (3) months. Among the areas of concern that were discussed today, and you have agreed to correct are: * You will obey all rules, regulations and lawful instructions of the contract employer (Central Security), U.S. Marshal’s Service and Court Security Supervisory personnel. * Observe and abide by the ‘‘chain of command’’ rule,recognizing the need to first contact and commu- nicate with the on-side [sic] Court Security Supervisor for advice, instructions, clarification on policy, shift/assignment changes, grievances or any other work related problems before proceeding up or down the chain of command. * I understand that failure to correct and/or adhere to the foregoing will be considered insubordination and may effect my continued employment with Central Se- curity. /s/ Edward R. Clarke cc: Central Security file [GC Exh. 5] During the meeting it was made clear to Clarke his cir- culation of the letters prompted his discipline and Brady’s drafting and circulating the letters was the cause of his dis- charge, with Villella commenting Brady previously wrote a letter to the Respondent’s vice president, had again caused trouble with his current letter circulation, such action violated the rules, Brady wasn’t the kind of employee the Respondent wanted, and Brady had been discharged for preparing and circulating the current letter(s). Pursuant to the USMS-Respondent contract, the Respond- ent promulgated and maintained a Code of Conduct contain- ing, inter alia, the following rules: Each Court Security Officer (CSO) of the contractor must manifest the following behavior conduct. The CSO must: . . . . 8. Not engage in any discussion concerning Depart- ment of Justice or United States Marshals Service (USMS) internal matter, policies, grievances or person- alities and financial, personnel or family members with jury members, prisoners, witnesses, protectees, family members, the public or any known associate of the above. . . . . 23. Not make statement(s) about fellow employees or officials with knowledge of the falseness of the state- ment or with ruthless disregard of the truth which would be a defamatory falsehood made with malice. 24. Report serious violations of prescribed rules and regulations. Report violations of statute law to appro- priate management officials. . . . . 29. Once on duty, the carrying and reading of any type of literature is strictly forbidden. 30. Neglect of duty, including sleeping while on duty, unreasonable delays or failure to carry out as- signed tasks, conducting personal affairs during official time and refusing to render assistance or cooperate in upholding the integrity of the security program at the work sites. Any violation of the above rules and regulations could result in a formal reprimand, suspension from duty and loss of pay or termination. The day he was discharged, Brady filed the charge which led to this proceeding. Sometime following its receipt of a copy of the charge, the Respondent requested USMS’ reac- tion to Brady’s reinstatement. On July 3, Marshall Robinson addressed a written reply to the Respondent’s request containing, inter alia, the following statement: Be advised this office will not approve Mr. Brady for any employment in the United States Marshals Service, nor will it accept him as a contract employee as a Court Security Officer in this district. His special deputization was removed following his termination by Central Se- curity Systems, Inc., and is in accordance with the con- tract provision ‘‘. . . conducting personal affairs during official time . . .’’ as cited in subparagraph 8.1.2 of Section C-8 ‘‘removal from duty/replacement of CSO’S.’’18 252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formance of security duties during their tour(s) of duty. The Contractor must comply with these requests. For clarification, a determination of unfitness may be made from, but not limited to, incidents involving the most immediately identifiable types of misconduct or delinquency as set forth below: . . . 8.1.2 Neglect of duty, including sleeping while on duty, unrea- sonable delays or failure to carry out assigned tasks, conducting personal affairs during official time, and refusing to render as- sistance or cooperate in upholding the integrity of the security program at the work sites. 19 Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB v. City Dis- posal Systems, 465 U.S. 822, 831 (1984); Sierra Publishing Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989); NLRB v. Henry Colder Co., 907 (7th Cir. 1990); NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990); Meyers Industries, 281 NLRB 1882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987); Diagnostic Center Hospital Corp., 228 NLRB 1215 (1977); Independent Sta- tions Co., 284 NLRB 394 (1987); TLT-Babcock, 293 NLRB 163, 167 (1989); Chinatown Planning Council, 290 NLRB 1091 (1988); Korea News, 297 NLRB 537 (1990); Aspen, 298 NLRB 401 (1990); Wabeek Country Club, 301 NLRB 694 (1991). 20 Page Avjet, 278 NLRB 444 (1986); Times Wire & Cable, 280 NLRB 19 (1986); Checker, Inc., 247 NLRB 85 (1980). 21 Hoytuck Corp., 285 NLRB 904 (1987); American Poly-Therm Co., 298 NLRB 1057 (1990); Garrison Valley Center, 246 NLRB 701 (1979); A & R Transport v. NLRB, 601 F.2d 311 (7th Cir. 1979); EDM of Texas, 245 NLRB 934 (1979); Robert Bosch Corp., 256 NLRB 1036 (1981). The Respondent has not offered to reinstate Brady to his former or a substantially equivalent position since his dis- charge at any of the northern California courthouses nor of- fered him employment at any other facility where it provides security services. Neither the original nor the final letter drafted by Brady, circulated among the CSOs by Brady and Clarke and dis- cussed by Brady and Clarke with other CSOs were ever sent to the judges or to any other persons. Marshal Davey testified USMS considered Brady’s draft and circulation of the proposal that copies of the original let- ter be sent to the judges violated rule 8 and section 8.1 and 2 of the USMS-Respondent contract, irrespective of the fact the proposal was abandoned and no letter was ever sent to the judges, stating the drafting and circulation of the proposal among the CSOs violated the rule and warranted Brady’s dis- charge (and, presumably, Clarke’s discipline). C. Analysis and Conclusions 1. Preliminary All the Respondent actions alleged to constitute unfair labor practices in the complaint recite the complained of ac- tions interfered with, restrained, or coerced employees in the exercise of their right under Section 7 of the Act to engage in concerted activity for their mutual aid or protection. The initial question for determination, then, is whether CSO preparation, circulation, and discussion of the letter draft and CSO preparation, circulation, and solicitation of signatures to the final letter constituted such activity. I find and conclude that it was; i.e., I find and conclude by Brady’s preparation of a draft letter to the Respondent’s president requesting information he and other CSOs desired concerning their rates of pay, wages, hours, and working conditions during the term of the Respondent-USMS contract— after their efforts to obtain that information from their immediate superiors were unsuccessful—his and Clarke’s circulation of the draft among CSOs for review and suggestions, his and Clarke’s discussion with CSOs of the draft and revisions or additions thereto, his preparation of the final letter containing revisions, changes, and additions de- rived from CSO discussion of the draft, his and Clarke’s cir- culation of the final letter among CSOs and requests or so- licitations other CSOs read the final letter and sign it, both Brady and Clarke were engaged in concerted activities for the mutual aid or protection of the CSOs employed by the Respondent in northern California within the meaning and application of Section 7 of the Act.19 2. The alleged late January violations (Perkins) The complaint alleged and the Respondent denied in about the last week of January the Respondent violated Section 8(a)(1) of the Act when Perkins gave employees the impres- sion the Respondent was surveilling the protected concerted activities of employees by telling employees he knew of their composing a letter to management concerning their terms and conditions of employment and by telling employees they could not engage in protected concerted activities. These allegations are based on Perkins’ statements to Clarke on January 31, in which he told Clarke he knew about Brady’s preparation and distribution of the letter draft, knew its contents, asked Clarke if he was its coauthor and identified Brady as a ‘‘shit disturber,’’ ‘‘stirring up the troops’’ by his preparation, circulation, and discussion of the letter with other CSOs. While I find and conclude Perkins’ announcement he knew the contents of the draft letter and that Brady had prepared and was circulating it does not support the conclusion Per- kins thereby gave Clarke the impression the Respondent was surveilling CSO involvement in the preparation of the letter draft,20 and the record fails to establish in the course of the conversation Perkins told Clarke he could not engage in its preparation, circulation, or discussion, Perkins’ interrogation of Clarke concerning his suspected role in preparing the draft and characterization of Brady as an undesirable employee by virtue of his role in preparing, circulating, and discussing the draft violated Section 8(a)(1) of the Act, which prohibits em- ployers from interfering with, restraining, or coercing em- ployees in the exercise of their right to engage in concerted activities for their mutual aid or protection, including Brady’s right to prepare, circulate, and discuss the draft letter.21 I therefore find and conclude by Perkins’ questioning of Clarke regarding authorship of the draft and his derogatory remarks to Clarke over Brady’s role in its preparation, cir- culation, and discussion, the Respondent violated Section 8(a)(1) of the Act. 3. The alleged February 7 violations (Perkins) The complaint alleged and the Respondent denied on about February 7 the Respondent violated Section 8(a)(1) of the Act by Perkins’ interrogation of employees concerning the identity of the author of the draft and the extent of his activities with respect to its circulation and discussion. This allegation is based on Perkins’ admitted interrogation of CSOs who previously reported Brady’s circulation and discussion of the draft letter to him, in order to secure firm 253 CENTRAL SECURITY SERVICES 22 Perkins and USMS unawareness of the contents of the final let- ter was undisputed. 23 Behring International v. NLRB, 675 F.2d 83 (3d Cir. 1982); Bill Johnson’s Restaurants v. NLRB, 660 F.2d 1335, 1337 (9th Cir. 1985); NLRB v. Pizza Crust Co., 862 F.2d 49 (3d Cir. 1988); Faulk- ner Hospital, 259 NLRB 364 (1984); Union Carbide Corp., 259 NLRB 974 (1982); CNA Financial Corp., 264 NLRB 619 (1982); Glenoaks Convalescent Hospital, 273 NLRB 488 (1984); Garrison Valley Center, 277 NLRB 1422 (1985); United Merchants, 284 NLRB 135 (1987); Sorenson Lighted Controls, 286 NLRB 969 (1987); Brookshire Grocery Co., 294 NLRB 462 (1989); Rikal West, 266 NLRB 551 (1983); Club Monte Carlo, 280 NLRB 257 (1986). 24 Hoytuck Corp., supra; American Poly-Therm Co., supra; Faulk- ner Hospital, supra; Brookshire Grocery Co., supra; Rikal West, supra. 25 NLRB v. S. E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988); NLRB v. Wells Dairy, 865 F.2d 175 (8th Cir. 1989); Overnite Transpor- tation Co., 254 NLRB 132 (1981); Bohemia, Inc., 266 NLRB 761 (1983); N & T Associates, 273 NLRB 270 (1984); Murd Industries, 287 NLRB 864 (1987); Robert Bosch Corp., supra. 26 Kinder-Care Learning Centers, 299 NLRB 1171 (1990); Cin- cinnati Suburban Press, 289 NLRB 966 (1988); Sierra Publishing Co. v. NLRB, 889 F.2d 210 (9th Cir. 1989); NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990); NLRB v. Auto Workers Local 980, 819 F.2d 1134 (3d Cir. 1987); Dougherty Lumber Co., 299 NLRB 295 (1990). identification of Brady as the initiator and circulator of the draft.22 The Board and reviewing courts consistently have held employer interrogation of employees to identify other em- ployees who have engaged in concerted activities protected by the Act and to learn the extent and nature of those activi- ties is violative of the Act.23 I therefore find and conclude Perkins’ February interroga- tion of CSOs for the purposes just expressed violated Section 8(a)(1) of the Act, since those interrogations were designed to identify Brady as the author and circulator of the draft and to develop information concerning Brady’s engagement in concerted activities protected by the Act. 4. The alleged February 9 violations (Perkins) The complaint alleged and the Respondent denied on about February 9 that the Respondent violated Section 8(a)(1) of the Act by Perkins’ exchanges with Brady prior to suspending him. On February 9, Perkins sought and secured from Brady an admission he circulated the letter among the the CSOs, fol- lowed by a statement Brady could not do that and that he was suspended for doing so. Perkins’ elicitation from Brady of an admission he cir- culated the letters, followed by Perkins’ statement he could not do that, certainly interfered with, restrained, and coerced Brady in his exercise of his Section 7 right under to engage in such circulation; I therefore find and conclude by those actions the Respondent violated Section 8(a)(1) of the Act.24 5. The alleged February 17 violations (Villella) The complaint alleged and the Respondent denied on about February 17 the Respondent violated the Act when Villella told Clarke that Brady was discharged for authoring and distributing the letters and called Brady a troublemaker for authoring that and a previous letter sent to the Respond- ent’s headquarters. Findings have been entered that Brady was engaged in protected, concerted activities when he authored, circulated, and discussed the letters, and solicited signatures thereto. The Board has held an employer’s telling an employee another employee was discharged for engaged in such activity is co- ercive, violates Section 8(a)(1) of the Act, and an employer’s identification of an employee who engages in such activity as a troublemaker is also a violation.25 I therefore find and conclude by Villella’s identifying Brady to Clarke as a troublemaker who had been discharged for engaging in concerted activities protected by the Act, the Respondent violated Section 8(a)(1) of the Act. 6. The alleged rule violations a. Rule 8 and the February 1 rule The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by maintaining and enforcing code of conduct rule 8 and by promulgating, maintaining, and enforcing the February 1 Villella rule. Rule 8 prohibits each CSO from engaging in any ‘‘discus- sion’’ of ‘‘Department of Justice or USMS . . . personnel . . . matters’’ with ‘‘protectees’’ and the February 1 rule promulgated and maintained by the Respondent required that ‘‘[c]omplaints or requests . . . related to CSO . . . condi- tions . . . are to be conducted through the channels de- scribed above’’ and defined those channels as the Respond- ent’s managerial personnel. In a strained interpretation of rule 8, Marshal Davey iden- tified the judges served by the CSOs as protectees within the meaning of the rule and the proposed sending of copies of the original letter draft requesting the Respondent furnish in- formation concerning the CSOs’ wages and benefits to such protectees as a ‘‘discussion’’ of ‘‘USMS personnel matters’’ and thus barred by the rule. Since the letter was never sent to the judges, Brady never engaged in a ‘‘discussion’’ with the judges, presuming send- ing of a copy of the letter to the judges would constitute a ‘‘discussion.’’ I therefore find and conclude neither Brady nor Clarke violated rule 8 by the drafting and circulation among the CSOs of the original letter draft. Were I to accept Davey’s interpretation of the rule, the rule itself is contrary to Federal public policy embodied in Section 7 of the Act and therefore void and unenforceable, since the proposed sending of copies of the letter to the judges obviously was a hopeful attempt to cause the Re- spondent to supply the information concerning wages, etc., requested in the letter, Brady’s 1988 letter never was an- swered, and the Board and reviewing courts consistently have held employees have a right under Section 7 of the Act to address appeals to third persons in an effort to secure a satisfactory response from their employers to their com- plaints, requests, etc., concerning their wages, hours, or working conditions and therefore any employer prohibition or restraint on the exercise of that right through a rule, order, threat, or direction violates Section 8(a)(1) of the Act.26 Referring to an employer requirement its employees re- frain from contacting parents and discussing with those par- ents their dissatisfaction over their wages, etc., in the hope 254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27 Kinder-Care Learning Centers, supra at 1172. 28 Kinder-Care Learning Centers, Also see Safeway Stores, 266 NLRB 1124 (1983). 29 Wabeek Country Club, 301 NLRB 694, 699 (1991); also see St. Joseph Hospital Corp., 260 NLRB 691 fn. 2 (1982); American Cast Iron Pipe Co., 234 NLRB 1126 (1978); Independent Stations, 284 NLRB 394, 396 (1987); Standard Motor Products, 265 NLRB 482 (1982); Spartan Plastics, 269 NLRB 546 (1984). the parents might help resolve their complaints, the Board stated: [T]his requirement . . . has no basis in either the lan- guage or the policy of the Act—reasonably tends to in- hibit employees from bringing work-related complaints to, and seeking redress from, entities other than the Re- spondent, and restrains the employees’ Section 7 rights to engage in concerted activities for . . . mutual aid or protection.27 On the basis of the foregoing, I find and conclude the Re- spondent’s maintenance and enforcement of rule 8 violates and violated Section 8(a)(1) of the Act and is therefore void and unenforceable. The same reasoning applies to the Respondent’s February 1 rule, which required and requires the CSOs to channel their requests for information or complaints concerning their wages, etc., through the Respondent’s managerial chain of command. Speaking to this issue, the Board stated: The Respondent’s rule that employees must first take any work-related complaint to the Respondent tends to inhibit employees from banding together by requiring that, in every such case, an employee must approach the Respondent . . . even before discussing the issue with other employees. Faced with such a requirement, some employees may never invoke the right to act in concert with other employees . . . because they are un- willing first to run the risk of confronting the employer on an individual basis (noting, in a footnote, an individ- ual employee who complains to his employer without first involving other employees may be found not to have engaged in concerted activity, and thus lose the protection of the Act). Accordingly, we conclude that this portion of the Re- spondent’s . . . rule violated Section 8(a)(1).28 On the basis of the foregoing, I find and conclude the Re- spondent’s promulgation, maintenance, and enforcement of its February 1 rule violates and violated Section 8(a)(1) of the Act and is therefore void and unenforceable. b. Rule 23 The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by maintaining and enforcing code of conduct rule 23. Rule 23 bars each CSO from making statements about fel- low employees or officials with knowledge of the falseness of the statement or with ruthless disregard of the truth which would be a defamatory falsehood made with malice. The Board has consistently held such rules unlawful per se ‘‘because they were overly broad, forbidding utterances made in the course of protected, concerted activity off work- ing time and off the employer’s property and second, be- cause they punished the merely false, as opposed to the mali- cious and vicious.’’29 On the basis of the foregoing, I find and conclude the maintenance and any enforcement of rule 23 violates and has violated Section 8(a)(1) of the Act and is therefore void and unenforceable. c. Rule 24 The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by maintaining and enforcing code of conduct rule 24. Rule 24 requires that each CSO report serious violations of prescribed rules and regulations and to report violations of statute law to appropriate management officials. Counsel for the General Counsel appears to have aban- doned the allegation this rule violated the Act, for he neither adduced any evidence nor advanced any argument with re- spect to complaint allegation. I therefore recommend dismissal of those portions of the complaint alleging by its maintenance and enforcement of rule 24, the Respondent violated the Act. d. Rule 29 The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by maintaining and enforcing code of conduct rule 29. Rule 29 ‘‘strictly prohibits’’ any CSO from ‘‘carrying’’ and ‘‘reading’’ ‘‘any type of literature’’ ‘‘once on duty.’’ The rule is patently too broad; while the Respondent may justifiably bar each CSO from reading newspapers, novels, articles, etc., while ‘‘on duty,’’ on its face each CSO would be barred from reading work-related material and each CSO would be barred from carrying on his person material such as copies of the letters here concerned, for discussion during his breaks, before and after his work shift. I therefore find and conclude by its maintenance and any enforcement of rule 29 except as applied to reading non- work-related material violates and has violated Section 8(a)(1) of the Act and is void and unenforceable. e. Rule 30 The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by maintaining and enforcing code of conduct rule 30. Rule 30 prohibits each CSO from conducting personal af- fairs during official time. ‘‘Official time’’ is not defined in the rule or any accom- panying material, but a reasonable interpretation is the hours each CSO has an assigned duty post and duties. The Re- spondent has a legitimate business interest in maintaining and enforcing a rule barring its employees from conducting personal affairs during those hours and I therefore so find and conclude. I therefore further find and conclude the Respondent did not violate Section 8(a)(1) of the Act by maintaining and en- forcing rule 30. 255 CENTRAL SECURITY SERVICES 30 National Licorice Co. v. NLRB, 309 U.S. 350, 365 (1940); Ma- chinists Local 35 v. NLRB, 311 U.S. 72, 81 (1940). 31 See the cases cited under 1 and 6 above. 32 NLRB v. S. E. Nichols, Inc., supra; Polynesian Hospitality Tours, 297 NLRB 228 (1989). 33 See the cases cited in 1 and 6 above. 34 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). f. The alleged nonapplicability of the Act to the rules The Respondent contends it cannot be held to have vio- lated the aforementioned code of conduct rules because USMS promulgated, and required the Respondent to maintain and enforce its ‘‘code of conduct.’’ Section 7 of the Act is the public policy of the United States. Since at least 1940, the Board has been empowered to invalidate those portions of a private contract which inter- fere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act,30 I therefore reject the Respondents contention and find void and unenforceable those portions of the USMS-Respondent contract mandating the maintenance and enforcement of code of conduct rules 8, 23, and 29. 7. The Clarke discipline The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act on February 17 by issuing and requiring Clarke to acknowledge, sign, and agree to comply with the terms of a written, disciplinary warning notice. The notice informed Clarke he was being placed on proba- tionary status for 3 months, with his continued employment contingent upon his: (1) obeying all rules, regulations, and instructions of the Respondent, the USMS and court security supervisory personnel; (2) observance and abiding by the Re- spondent’s February 1 chain-of-command rule, i.e., ‘‘the need to first contact and communicate with the on-side [sic] Court Security Supervisor for advice, instructions, clarifica- tions on policy, shift/assignment changes, grievances or any other work related problems before proceeding up or down the chain of command.’’ It is clear this discipline was levied upon Clarke for his circulation and discussion of the letters among and with the CSOs (including his solicitation of CSOs to read and sign the final letter, if so inclined). It is further established Clarke and the CSOs among whom he circulated and discussed the let- ters were off duty at the time of the circulations, discussions, and solicitations. The Respondent did not advance any basis for Clarke’s discipline other than his role in the circulation, discussion, and solicitation of the letters, relying on the contention that activity, even if concerted, was unprotected because it vio- lated the Respondent’s February 1 chain-of-command rule and code of conduct rules. I have concluded the February 1 rule interferes with em- ployee exercise of a Section 7 right to engage in the activi- ties in question and is therefore void and of no force and ef- fect; I have reached a similar conclusion with respect to any of the code of conduct rules which would inhibit Clarke’s engagement in the activities I have outlined above. I have also concluded Clarke’s activities—circulating the letters among CSOs, discussing the letters with CSOs, and soliciting CSOs to read and sign the final letter, if so inclined—are concerted and protected activities within the meaning of Sec- tion 7 of the Act. I therefore find and conclude by disciplining Clarke for engaging in those activities, the Respondent violated Section 8(a)(1) of the Act.31 8. The Brady discipline The complaint alleged and the Respondent denied the Re- spondent violated Section 8(a)(1) of the Act by suspending and discharging Brady. There is no question the Respondent suspended Brady on February 9 and discharged him on February 17 for drafting, circulating among other CSOs, discussing with other CSOs, and soliciting other CSOs to read and sign the letters. Again, as in Clarke’s case, the Respondent contends those activities were neither concerted nor protected within the meaning of the Act and, presuming they were concerted, were nevertheless unprotected because they violated its Feb- ruary 1 rule and the code of conduct. I have entered findings and conclusions above Brady’s ac- tivities were both concerted and protected. I have also en- tered findings and conclusions the Respondent failed to es- tablish Brady violated code of conduct rules 8, 23, 24, or 30 and that, in any event, code of conduct rules 8, 23, 29, and the Respondent’s February 1 rule are void and unenforceable. As to code of conduct rule 29, I would further note the rule is unenforceable in any event under the circumstances of this case—the disciplining of Brady and Clarke for activi- ties condoned and participated in by their immediate superi- ors, i.e., the circulation, discussion, and solicitation of signa- tures to nonwork-related material which did not involve CSO concerns over their wages, hours, and working conditions.32 I therefore find and conclude by suspending Brady on Feb- ruary 9 and discharging him on February 17 for engaging in concerted activities within the meaning of the Act, the Re- spondent violated Section 8(a)(1) of the Act.33 I further find and conclude Wright Line,34 is inapplicable, inasmuch as the Respondent did not advance any reason or reasons for the Brady (and Clarke) disciplines other than their roles in the circulation, discussion and solicitation of signatures to the letters. CONCLUSIONS OF LAW 1. Because at all pertinent times the Respondent was an employer engaged in commerce in a business affecting com- merce within the meaning of Section 2 of the Act, this case warrants the Board’s exercise of its plenary jurisdiction to determine whether the Respondent committed the unfair labor practices alleged in the complaint and, if so, the appro- priate remedy therefor. 2. At all pertinent times Villella and Perkins were super- visors and agents of the Respondent acting on its behalf within the meaning of Section 2 of the Act. 3. In drafting, circulating among other employees, discuss- ing with other employees, and soliciting other employees to read and sign letters containing requests for information con- cerning the employees’ wages, hours, and working condi- 256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. tions, Brady and Clarke were engaged in activities for the employees’ mutual aid or protection and therefore were exer- cising rights under Section 7 of the Act. 4. By Perkins’ January interrogation of Clarke concerning his suspected role in the preparation of the original letter draft and characterizing Brady as an undesirable employee for preparing, circulating, and discussing the letter draft with other employees, the Respondent violated Section 8(a)(1) of the Act. 5. By Perkins’ February interrogations of employees to identify the preparer(s) of the letter draft and the extent of their circulation and discussion of it with other employees, the Respondent violated Section 8(a)(1) of the Act. 6. By Perkins’ February 9 elicitation from Brady an ad- mission he circulated the letter draft among other employees and stating Brady could not engage in that activity, the Re- spondent violated Section 8(a)(1) of the Act. 7. By Villella’s February 17 identification of Brady to Clarke as a troublemaker discharged for preparing and dis- tributing the letter draft among other employees, the Re- spondent violated Section 8(a)(1) of the Act. 8. By maintaining and enforcing its February 1 chain-of- command rule and rules 8, 23, and 29 of the code of con- duct, the Respondent violated Section 8(a)(1) of the Act. 9. By its disparate enforcement of code of conduct rule 29 vis-a-vis Brady and Clarke, the Respondent violated Section 8(a)(1) of the Act. 10. By its February 17 issuance and enforcement of dis- cipline against Clarke for circulating, discussing, and solicit- ing the reading and signing of the letters, the Respondent violated Section 8(a)(1) of the Act. 11. By its February 9 suspension and February 17 dis- charge of Brady for preparing, circulating, discussing, and soliciting signatures to the letters, the Respondent violated Section 8(a)(1) of the Act. 12. The Respondent did not otherwise violate the Act. 13. The aforesaid unfair labor practices affected and affect commerce as defined in the Act. THE REMEDY Having found the Respondent engaged in unfair labor practices, I recommend the Respondent be directed to cease and desist therefrom and to take affirmative action designed to effectuate the purposes of the Act. Having found the Respondent disciplined Clarke and Brady for engaging in concerted activities protected under the Act, I recommend the Respondent be directed to remove from its records any records reflecting such discipline, advise Clarke and Brady in writing this has been accomplished, and their engagement in the concerted activities herein above de- scribed shall not affect their employment. Having found the Respondent suspended Brady on February 9 and discharged him on February 17 for engaging in concerted activities pro- tected under the Act, I recommend the Respondent be di- rected to offer Brady reinstatement to his former or a sub- stantially equivalent position and make him whole for any wage and benefit losses he may have suffered by virtue of the discrimination against him, less any interim earnings, with the amount due and interest thereon computed in ac- cordance with the formulae of New Horizons for the Re- tarded, 293 NLRB 1173 (1987); Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138 NLRB 716 (1962). In view of the fact USMS’s July 13 refusal to ap- prove Brady’s reinstatement and redeputization was based on the Respondent’s erroneous report Brady abandoned his duty post and violated code of conduct rule 30, thereby warranting USMS’ actions in reliance of that report under section C-8, subsection 8.1. and2 of the USMS-Respondent contract, I recommend the Respondent be directed to advise USMS it erroneously advised USMS that Brady abandoned his duty post to solicit Banda’s signature to the final letter and request USMS retract its July 13 letter and approve Brady’s rein- statement and redeputization. I further recommend, in the event USMS refuses that request, the Respondent be directed to offer Brady employment equivalent to that last held by him with the Respondent and continue to make him whole until such time as he has been reemployed. On the basis of the foregoing findings of fact conclusions of law and the entire record, I recommend issue the follow- ing35 ORDER The Respondent, Central Security Services, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning the identity of other employees engaged in concerted activities for employ- ees’ mutual aid or protection or the extent of such engage- ment. (b) Telling employees other employees engaged in con- certed activities for employees’ mutual aid or protection are troublemakers and undesirable employees. (c) Telling employees they could not engage in concerted activities for employees’ mutual aid or protection. (d) Telling employees an employee had been discharged for engaging in concerted activities for employees’ mutual aid or protection. (e) Maintaining and enforcing rules which interfere with, restrain, or coerce employees in the exercise of their right under Section 7 of the National Labor Relations Act to en- gage in concerted activities for employees’ mutual aid or protection. (f) Disparately enforcing rules against employees engaged in concerted activity for mutual aid or protection. (g) Disciplining employees for engaging in concerted ac- tivities for employees’ mutual aid or protection. (h) Suspending and discharging employees for engaging in concerted activities for employees’ mutual aid or protection. (i) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer reinstatement or reemployment to John E. Brady in the manner set forth in the remedy section of this deci- sion. 257 CENTRAL SECURITY SERVICES 36 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (b) Make John E. Brady whole for wage and benefit losses he may have suffered by virtue of the discrimination prac- ticed against him in the manner prescribed in the remedy section of this decision; (c) Remove from its records any record of discipline against John E. Brady and Edward Clarke and advise Brady and Clarke in writing this has been accomplished and their engagement in concerted activities herein described shall have no affect on their employment. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security records, timecards, personnel records and re- ports, and all other records necessary to analyze and deter- mine the amount or amounts of money due under the terms of this Order. (e) Post at its facilities copies of the attached notice marked ‘‘Appendix.’’36 Copies of the notice, on forms pro- vided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director within 20 days from the date of this Order what steps the Respondent has taken to comply.