Superior Protection, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954 Superior Protection, Inc. and United Government Security Officers of America, for and on behalf of Local 229.1 Cases 16–CA–21399, 16–CA– 21495, and 16–RC–10361 July 31, 2003 DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA On August 28, 2002, Administrative Law Judge Robert A. Pulcini issued the attached decision and on September 25, 2002, an erratum to that decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The Respon- dent filed a reply 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 briefs,2 affirms the judge’s rulings, findings,3 and conclusions,4 and adopts the rec- ommended Order as modified.5 1 In a limited exception, the Charging Party moves the Board to amend its name in the caption. We grant the exception and amend the name as requested. 2 The Respondent has requested oral argument. The request is de- nied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. We also deny the Respondent’s motion to reopen the case and receive further evidence. Member Acosta joins his colleagues in denying the Repsondent’s exception to the judge’s ruling rejecting its attempt to introduce into evidence the entire transcript, correspondence, and pleadings from the preelection hearing in the representation case, rather than just the por- tion of the transcript containing the testimony of discriminatee Kelvin Trotter, whose testimony in the present proceeding the Respondent seeks to discredit. In the absence of newly discovered or previously unavailable evidence or special circumstances, a respondent is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. Transportation Maintenance Services, 331 NLRB 1050 (2000). Member Acosta finds that the Respondent has failed to explain how the admission of the remaining transcript is ap- propriate or necessary because, as the judge stated at fn. 2 of his deci- sion, the judge admitted Trotter’s previous testimony into evidence, and the remaining key witnesses to matters in issue here—specifically Trotter’s alleged status as a discriminatee discharged in violation of Sec. 8(a)(3)—appeared and testified subject to cross examination in the present proceeding. 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Some of the Respondent’s exceptions imply that the judge’s rul- ings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit. 4 In adopting the judge’s findings, we find it unnecessary to draw an adverse inference from the Respondent’s failure to call employees King ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Superior Protection, Inc., Houston, Texas, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b) and reletter the subsequent paragraph accordingly. “(b) Disciplining, discharging, or otherwise discrimi- nating against any employee for supporting United Gov- ernment Security Officers of America and its Local #229 or any other union. “(c) Disciplining, discharging, or otherwise discrimi- nating against employees because they have given testi- mony under the Act.” 2. Substitute the following for paragraph 2(b). “(b) Make Kelvin Trotter whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against him in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), less any interim earnings, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).” and Murphy. Even absent the adverse inference, the judge’s findings and conclusions are well-founded in the record. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) when it imposed a 3-day suspension and 90-day proba- tionary period on Trotter, we reject the Respondent’s characterization that Trotter was “loud, belligerent, insubordinate, disrespectful, and profane” when Contract Administrator Jose Castillo confronted him. Castillo used this characterization to describe Trotter’s actions, but the judge did not credit this testimony. We agree with the judge that the asserted basis for the Respondent’s decision to issue the initial 1-day suspension to Trotter was pretextual and that the Respondent could not in the circumstances of this case rely on conduct it provoked as a basis for disciplining Trotter. We adopt the judge’s conclusion that the Respondent’s stated rea- son for Trotter’s discharge, which was that he “lied” at the Board hear- ing, was also pretextual. In doing so, however, we do not rely upon the judge’s statement that the Board “construes testimony before it ‘liber- ally.’” (Emphasis added.) Rather, we note that the Board interprets Sec. 8(a)(4), and not witness testimony, liberally: “[I]t is clear that Section 8(a)(4) is to be construed liberally . . . and that it protects even false testimony so long as such testimony was not willingly and know- ingly false and uttered with intent to deceive.” Glover Bottled Gas Co., 275 NLRB 658, 673 (1985) (emphasis added). 5 We modify the recommended Order to include a remedial provi- sion for the Respondent’s violation of Sec. 8(a)(4). Also, the judge included in his recommended remedy a provision requiring the Re- spondent to reimburse Kelvin Trotter for any extra Federal or State income tax that would result from the lump sum payment of any back- pay award. Granting this request would involve a change in Board law. See, e.g., Hendrickson Bros., 272 NLRB 438, 440 (1985), enfd. 762 F.2d 990 (2d Cir. 1985). In light of this, we believe that the appropri- ateness of this proposed remedy should be resolved after a full briefing by the affected parties. See Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1 (2000). Because there has been no such briefing in this case, we decline to include this additional relief in the Order here. 339 NLRB No. 118 SUPERIOR PROTECTION, INC. 955 3. Substitute the attached notice for that of the admin- istrative law judge. IT IS FURTHER ORDERED that the Regional Director for Region 16 shall, within 14 days from the date of this Or- der, open and count the ballot of Kelvin Trotter, and shall prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT send letters to any of you that directly or indirectly threaten discipline or discharge for engaging in activities on behalf of United Government Security Offi- cers of America and its Local 229, or any other Union. WE WILL NOT discipline, discharge, or otherwise dis- criminate against any of you for supporting United Gov- ernment Security Officers of America and its Local 229 or any other union. WE WILL NOT discipline, discharge, or otherwise dis- criminate against any of you for giving testimony in a proceeding before the Board. 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, within 14 days from the date of the Board’s Order, offer Kelvin Trotter full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges enjoyed. WE WILL make Kelvin Trotter whole for any loss of earnings and other benefits resulting from his discipline and discharge, less any net interim earnings, plus inter- est. WE WILL, within 14 days of the date of the Board’s Order, remove from our files any reference to the unlaw- ful discipline and discharge of Kelvin Trotter, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discipline and discharge will not be used against him in any way. SUPERIOR PROTECTION, INC. Linda M. Reeder, Esq., for the General Counsel. Michael Jay Kuper, Esq. (Michael Jay Kuper, a Professional Corporation), of Houston, Texas, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT A. PULCINI, Administrative Law Judge. This case was tried in Houston, Texas, on March 11 and 12, 2002. The charge was filed on September 10, 2001,1 against Superior Protection, Inc. (the Respondent) by the United Government Security Officers of America, Local 29, AFL–CIO (the Union). A complaint issued on November 16, 2001. The Union filed a petition seeking an election in a unit of the Respondent’s em- ployees on August 20. The election, conducted between Octo- ber 15 and 29, resulted in one determinative challenged ballot. The issues relating to this election and the outstanding com- plaint were consolidated for hearing on November 29. The complaint was amended, as well, on November 29. The amended complaints allege that the Respondent discriminato- rily disciplined and then discharged employee Kelvin Trotter (Trotter), thereby violating Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act). The determinative ballot arising out of the election is the ballot of Trotter. Issues (1) Whether the Respondent discriminated against Trotter by disciplining him and then firing him because of his activities on behalf of the Union. (2) Whether the Respondent discriminated against Trotter by disciplining and then firing him because he participated in pro- ceedings before the National Labor Relations Board. (3) Whether the Respondent’s challenge to the ballot of Trot- ter is appropriate.2 1 All dates are in 2001 unless otherwise indicated. 2 The Respondent attempted to litigate representation case issues during the hearing. The General Counsel objected to this. I ruled in favor of the General Counsel and forbade the introduction of this evi- dence. The Respondent offered documentary evidence on these issues, which I rejected. These exhibits were placed in a rejected exhibits file. However, I rejected further attempted proffers without allowing the placing of related written material into the rejected exhibits file. In its brief, the Respondent renewed its request to place this material into the rejected exhibits file. The General Counsel moves to strike the portions of the brief relating to these exhibits and opposes this. I agree with the General Counsel that the underlying subject matter of these exhibits is beyond this proceeding. The Respondent seeks to relitigate issues belonging to the representation case, while offering no convincing grounds to do so. The thrust of its argument centers on its dealings with the General Counsel and Region 7, which it found unsatisfactory. However, the Respondent simply did not establish the materiality and relevancy of these “issues” to the status of Trotter as an alleged dis- criminatee. Thus, my barring inquiry into these issues at hearing is appropriate in the interests of maintaining a taut, precise record. How- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 956 On the entire record,3 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, operates from its facility in Houston, Texas, where it annually provides security services to federal agencies. The Respondent annually provides these services valued more than $50,000 to customers located outside of the State of Texas. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Respondent operates a multistate security service pro- viding guards for Federal buildings. Its primary source of con- tractual business is the General Services Administration (GSA). GSA defines the parameters for contract performance and awards contracts on a bid basis. The principal officer of the Respondent is its president, Jack Heard. Heard presides over his hundreds of guards with various supervisory help. Unions represent employees in some locations. The situs of the issues in this case is Houston, Texas. Trotter worked for the Respondent’s predecessor company, Southwest Security, for sometime. The Respondent hired Trot- ter when it assumed the contract of this company in November 1999. Trotter’s work history with the Respondent, before the events involved here, is essentially unremarkable. He received two minor instances of discipline before September 2001 and at least one letter of praise from a Federal agency he guarded. It is undisputed that the Respondent viewed Trotter as a satisfac- tory employee before September 2001 when the alleged dis- criminatory events happened. Sometime in April or May, Trotter contacted the Union through its representative, James Carney, about unionizing the Respondent. Trotter used a pseudonym, Jonathan Wills, in this contact. He testified he was concerned about losing his job, a concern that ultimately proved to be prescient. In the ensuing months before August 20,4 Trotter got cards from Carney, pass- ing them out and retrieving them surreptitiously. He appears to ever, I will allow the Respondent to augment its rejected exhibits by having the attachments to its brief referred to as X-1 through X-12 included. In so doing, I seek only to preserve the due-process rights of the Respondent. The substance of this rejected evidence, I continue to view, as completely irrelevant to the issues. Similarly, I deny the Gen- eral Counsel’s motion to strike portions of the Respondent’s brief deal- ing with these matters. The subject matter is excluded evidence, and I will not consider any of it. 3 The General Counsel’s unopposed motion to correct the record, dated April 17, 2002, is granted and received in evidence as GC Exh. 13. The Respondent’s unopposed motion to correct the transcript dated April 17, 2002, is similarly granted and received into evidence as R. Exh. 16. 4 The Union filed the petition for an election on this date. have done this quite successfully. The evidence is clear that the Respondent did not become aware of Trotter’s involvement until the very day of the representation hearing at the NLRB offices. The NLRB scheduled a representation hearing for September 4. Trotter received a subpoena to appear. He failed to tell the Respondent about this subpoena.5 Instead, Trotter asked his superior, Lieutenant Albert Johnson, for time off on the date of the hearing for “personal business.”6 Johnson did not ask Trot- ter what this business was. He told Trotter he would speak to Captain Jose Castillo about it. Trotter had taken time off on five or six previous occasions in exactly this way. Johnson did speak to Castillo and reported to Trotter the next day that he could have his time. Johnson told Trotter that he might have to cover a shift at the Military Enlistment Processing Station (MEPS) if someone from there took his shift. In fact, no one told Trotter anything about work schedules for the day of the hearing, until the day of the hearing. Trotter attended, as did Union Attorney Nelson, Heard, and Michael Jay Kuper, the Respondent’s attorney. Trotter asked early on how long the hearing would take and told those present that he had to leave at 12 or 12:30 p.m. so he could change into his uniform for possible work that afternoon at MEPS. No one told Trotter anything to the contrary to that point. Trotter then testified for the Union at length. Kuper cross-examined him and asked Trotter where he had first worked and how he had come to be in his present position in Houston. Trotter testified he had first worked in Galveston for the Respondent for a time and then asked for transfer to Houston.7 As Trotter left the hearing, Heard said to him, “Don’t be late.” Trotter called Lieutenant Johnson and asked about work for that day. Johnson told Trotter to relieve him at the Social Security building because he himself had some court date for 4 p.m. that day. Trotter told Johnson that he would report about 12:30 p.m. after he changed into his uniform. Johnson testified 5 Trotter never disclosed his subpoena to Respondent. Thus, it is a red herring. His failure to disclose it removed him from its inherent protections. 6 There was some dispute about Johnson’s supervisory status at hear- ing. It is not an issue affecting this case. The Respondent sought to relitigate Johnson’s status as a statutory supervisor. Johnson had un- disputed authority to arrange employee work schedules as he did in Trotter’s case. This is the only relevant fact. Whether he is a statutory supervisor is immaterial to the issues in this case. 7 The exchange between Kuper and Trotter was: Q. Do you spend part of your time in Houston and part of your time in Galveston? A. No sir. I work in Houston now. Q. And what was the reason for the change? A. A position came available and they gave it to me. Q. Did you apply for it? A. No sir. There’s no formal applies. Q. I’m sorry. A. No sir. Q. I see. But you didn’t apply to Houston, they told you that you had to come to Houston, is that your testimony? A. It’s not a have to, they offered me a position to come to Houston and I took it. [See GC Exh. 8., Q referring to question and A to its answer.] SUPERIOR PROTECTION, INC. 957 that Trotter’s starting time was left open. Trotter did not give him a precise starting time.8 While Trotter was arranging his reporting time, Heard called his operations manager, Mike Lane. He told Lane to report to him exactly what time Trotter arrived at work. Lane is the Respondent’s executive functionary and manages the approxi- mately 700 guards of the Respondent’s multistate operation. This personal interest in one employee was unusual for Heard. Heard’s inquiry flowed down the supervisory hierarchy from Lane to Captain Jose Castillo to Lieutenant Johnson. Johnson told Castillo that Trotter had still not reported in. This informa- tion made its way back to Heard. Heard told Castillo to issue Trotter a 1-day suspension when he came to work.9 Trotter came to work at the Social Security building between 1:30 and 1:45 p.m. When he arrived, Johnson told him to go to the FBI building to see Castillo. Trotter arrived at the FBI building and approached the security desk where fellow officer Murphy was on duty. He told Murphy he was there to see Castillo. Murphy went to Castillo’s nearby office and told Castillo that Trotter was there. Castillo kept Trotter waiting for about 30 minutes before coming into the area where he waited. Castillo, without expla- nation, ordered Trotter to disarm himself. Trotter complied without questioning the order. He took his gun to his car and stowed it. In his previous 10 to 15 visits to the FBI building, Trotter was never asked to remove or surrender his weapon. Trotter came back into the building but Castillo had returned to his office. Another 15 minutes elapsed. Trotter asked another officer named King if he could knock on Castillo’s door. King told him to go ahead and Trotter knocked.10 Castillo told Trot- ter to continue waiting. Ten minutes later, Castillo emerged from his office and ordered Trotter to go through the metal detector.11 Trotter balked at the order and asked to be wanded instead. Castillo refused this request and ordered Trotter to go outside the building. Both men went outside. Castillo then read from a paper that Trotter testified was the Respondent’s disciplinary form. Castillo read that Trotter had failed to give his supervisor proper notification that he was taking off from work and reported late. Castillo asked Trotter to sign this form but Trotter refused. Trotter told Castillo that he had received permission to take off that day from Johnson to no avail. The exchange between Castillo and Trotter was heated. As Castillo went back into the building, Trotter followed him, asking about pay for the day. He also asked if he could get a copy of the disciplinary form. Castillo refused to give 8 I found Johnson to be a reasonably credible witness. He answered all questions without hesitation although he seemed somewhat confused about the reasons for Trotter’s discharge. 9 It is unclear how long this chain-of-command dialogue took. However, the inference from the facts is that it took place sometime between the close of the Board hearing at about noon time and 1:30 p.m. 10 It is unclear whether the office door was closed. Castillo testified that he shared the office with another person unconnected to the Re- spondent. The office was physically on the public side of the secured area. 11 Proceeding through the metal detector was an unusual act for a uniformed officer on duty to engage in. Trotter a copy because, he said, Trotter refused to sign it when he read it to him. Castillo ignored Trotter’s inquiry about pay. Instead, he ordered Trotter to leave. Trotter did not respond quickly enough for Castillo, who ordered officer King to call the FBI duty officer. The FBI officer came and ordered Trotter to leave on Castillo’s assertion that Trotter was causing a scene. That evening, Trotter received a call at home from Castillo, telling him to report to the main office the next morning. Lane and Castillo awaited him the next day. Upon his arrival, Lane said he was giving him a 3-day sus- pension and placing him on 90 days’ probation for the events at the FBI building.12 Trotter unsuccessfully tried to defend him- self. The Respondent fired Trotter on September 21, a week after the Decision and Direction of Election issued. Lane sent Casti- llo to Trotter’s duty station at about 4 p.m. that day. Castillo asked Trotter for his weapon and ammo. As he collected these, he reproved Trotter for having a dirty weapon and having too many bullets.13 Trotter asked him about the reason for his dis- charge. Castillo told him to call Lane and find out the reasons. On September 24, Trotter called Lane. Lane told him that the Respondent fired him for lying at the Board hearing. The Re- spondent fired only two other employees in the 3 previous years. The Respondent issued a letter to employees on October 11, just before the election.14 In its relevant portion, this letter reads: Recently, a security officer working on a Houston contract was terminated by the company. The officer and the union falsely claim that this employee was terminated due to his in- volvement with the union. In actuality, the employees was terminated because he lied under oath in a Labor Board hear- ing trying to help the union, which is against the law. This particular officer was a good employee; and unfortunately he was apparently influenced by disreputable individuals result- ing in his termination. The Respondent acknowledged through its president, Heard, that the “disreputable individual” referred to in this letter is Union Representative Carney. III. DISCUSSION AND ANALYSIS The Respondent raises a plethora of defenses of the issues in this matter. Many of these go to the merits of the representa- tion case and rulings made by the Regional Director. None of this, however, is before me or germane to the questions raised by the Respondent’s conduct towards Trotter. Possible reper- 12 Lane told Trotter he had engaged in “boisterous and disruptive ac- tivity in the workplace.” Trotter, he said, had engaged in “insubordina- tion and disrespectful conduct.” 13 The question of having six extra bullets, the Respondent alleged, violates the GSA contract guard manual regulations. A review of this document did not reveal this requirement. In any case, such an infrac- tion hardly rises to the level of a dischargeable offense, especially given the entire context of the events in this case. 14 The election in the representation case was held on October 30, re- sulting in a tie vote. The single challenged ballot of Trotter is determi- native of the results. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958 cussions to the representation case arise only in the context of the Trotter’s challenged ballot and its resolution. The decisional principles in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), and its many prog- eny set out the schematic for analysis of cases of alleged dis- crimination. First, the General Counsel must first make out a showing supportive of an inference that protected activity is the motivating factor in the discharge or discipline involved. Once this happens, the burden shifts to the employer to show that what occurred to the employee would have happened, in any event, irrespective of the employee’s protected concerted activ- ity. A prima facie case exists if the General Counsel estab- lishes union activity, employer knowledge of that activity, ani- mus and adverse action against the person or persons involved that has the effect of discouraging union activity. See Farmer Bros. Co., 303 NLRB 638, 649 (1991). If an employer’s stated motives for its actions are found to be false, an inference may be found in the circumstances or facts of the case that the true motive is one the employer wishes to conceal. Such an inference exists in viewing this record as a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991). Moreover, the Respondent never sufficiently rebuts the case General Counsel with a preponderance of evidence leaving the negative inferences drawn extant; see Merrilat Industries, 307 NLRB 1301, 1303 (1992). A. The 1-Day Suspension Of the witnesses testifying for the Respondent, Jack Heard’s testimony is pivotal.15 Heard turned his eye towards Trotter, literally within moments of his testimony, warning him not to be late.16 As Trotter left, Heard began the process of inquiry from his subordinates about him. This culminated in his order- ing Trotter’s discipline before he even arrived at his duty sta- tion. Lane testified that Heard’s involvement in Trotter’s case was merely an expression of a concerned chief executive offi- cer with the details of business. I reject this explanation as patently incredible.17 Trotter was 1 of nearly 700 guards. In any normal business context, Trotter’s being late for work 15 I scrupulously observed Heard’s testimony and weighed his ac- count of events against the other witnesses. His demeanor, in trial, had an exaggerated authoritarian quality to it. He visibly bridled with the questioning of his motives or decisions by others. The evidence re- flects that Heard has deep roots in law enforcement, rising to positions of great authority and power before starting his successful business. The Respondent conducts its business in a manner largely reflective of his personality. Thus, it, too, is very authoritarian in how it operates. It is clear from Heard’s demeanor and testimony that he found Trotter’s hearing appearance, on behalf of a union whose agents he called “dis- reputable,” an act of consummate betrayal. His testimony of his rea- sons for acting against Trotter seemed pure invention. He conveyed an impression of expressing a contrived rationale to mask other motiva- tion. 16 Heard’s warning to Trotter comes without a prelude. Heard did not ask a single question about Trotter’s schedule or what arrangements he had made to be present at the hearing. 17 Lane’s demeanor, while testifying, was the loyal subordinate tai- loring his responses to serve the needs of his superior. I place little reliance on anything he said. would never have risen to the level of Heard’s interest and in- volvement.18 Trotter’s testimony changed that context. The General Counsel successfully makes out a prima facie case in regards to the first instance of Trotter’s discipline that the Respondent fails to rebut. Trotter testified for the Union in a Board hearing before the Respondent’s chief executive officer (CEO). The Respondent disciplined him at the orders of that same CEO within hours of his testimony. This was unusual in the context of the previously meted-out discipline. The Re- spondent does not adequately answer the General Counsel’s case.19 Thus, I infer that this first instance of discipline was discriminatorily motivated. See Adco Electric, Inc., 307 NLRB 1113 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219 (1991). In drawing this inference, the timing of the event and the way the Respondent chose to enforce the alleged misconduct were compelling fac- tors. B. The 3-Day Suspension and 90-Day Probationary Period The circumstance of this event brings into conflict Castillo’s version of events and Trotter’s.20 In the undisputed details of this encounter, there are troubling facts tilting the resolution of the issue in favor of the General Counsel’s case. First, Johnson sent Trotter, at once, to see Castillo. The Respondent never explained the imperative that demanded this special calling out for punishment or the necessity to implement it immediately. When Trotter arrived at the FBI building, he underwent a series of seemingly arbitrary orders, first to disarm and then to pass through the metal detector.21 Neither of these things had ever 18 The Respondent states that Captain Castillo monitored Trotter’s immediate posthearing behavior because Lieutenant Johnson was sup- posed to be absent himself that afternoon. None of the complicated scenario the Respondent presents of supervisory concern rings true. The Respondent, in its brief, argues that Heard’s authority was in issue since he told Trotter not to be late, thus precipitating the flurry of phone calls back and forth to check on Trotter’s progress to work. I find this an absurd premise. Trotter had worked out his time for report with his immediate superior. He called Johnson after the hearing, telling him when he intended to report. He did so within the parameters of that call. The Respondent brewed a tempest in a teapot over Trotter’s re- porting late to work. The only reason that explains the unusual behav- ior by Heard is the desire to punish Trotter at once for his activity at the hearing that day. 19 There was no evidence introduced to demonstrate the punishment given Trotter was consistent with the Respondent’s past practice. There was no evidence to show that CEO Heard ever directly involved himself with the initial discipline of any employee, least of all for the comparatively trivial incident of being late for an open-ended tour of duty. 20 Castillo, like Lane, seemed the loyal subordinate seeking his supe- rior’s approval. He delivered his testimony with rote exactitude; giving answers to questions in a way he felt beneficial to Respondent. I place little reliance in them. Trotter, on the other hand, nervously stumbled to explain events. He appeared puzzled as to what had happened to him, almost hurt at the treatment afforded him by Respondent. His account was ingenuous in its presentation and thus very credible. Against the conflicting versions of events, I credit Trotter over Castillo. 21 Castillo had a number of options available to him that did not re- quire Trotter to disarm himself or submit to being effectively searched by the metal detector. One of these was to see Trotter inside his office outside of the security area. He chose not to do this. Eventually, at SUPERIOR PROTECTION, INC. 959 been necessary before. Moreover, Trotter was kept waiting for a long time by Castillo. Castillo never explained why he deemed it necessary to do so. Secondly, I do not accept his explanation of these events. Rather, I find that the circum- stance of this delivery of discipline was intentionally designed to victimize Trotter.22 Disarming Trotter and then requiring him, as a uniformed officer, to pass through the metal detector in front of his fellow officers was intended to publicly humili- ate him and mark him.23 Trotter doubtlessly acted up when Castillo began to read his discipline to him.24 However, by that time, Castillo humiliated and provoked Trotter in his treatment of him. His behavior, described by the Respondent as “boisterous” and “disruptive,” were the result of the Respondent’s actions.25 I agree with the General Counsel. A respondent may not take advantage of a situation it creates to discriminate further against an employee. Teksid Aluminum Foundry, 311 NLRB 711 (1993). C. Trotter’s Discharge The Respondent says it fired Trotter on September 21 for the events of September 4, i.e., being late for work, acting out when disciplined, and, most importantly, for lying at the Board hearing. The text of the Respondents case is that Heard, con- cerned about the content of Trotter’s Board testimony, ordered an “investigation.”26 GSA work rules, the Respondent states, allows for disciplinary action towards an employee for “lying to a government official or your supervisor.” In its brief, the Re- spondent catalogues 19 separate incidents where it says Trotter “lied” but centers its discharge case on Trotter’s answers to the Respondent’s questions about how he came to work in Hous- ton.27 The Respondent also accuses Trotter of lying in the in- stant case.28 In presenting its defense on this, the Respondent did not cite any authority that privileged its conduct. Trotter’s protest about the metal detector, he elected the option of see- ing him outside of the building. 22 The General Counsel requests that I draw an adverse inference from the Respondent’s failure to call the two witnesses to this event, officers King and Murphy. I grant the request. Both officers were in a position to observe all that transpired between Castillo and Trotter. I infer the Respondent did not call them because their testimony would have been adverse to the Respondent’s case. 23 I have taken into account the special relationship of trust and re- sponsibility that is inherent in the wearing of a uniform and the carrying of a weapon. These are the societal symbols of power and authority. Stripping these away, in my view, carried a public message of the Re- spondent’s withdrawal of the trust from Trotter, the union organizer. 24 The conflicting versions of this event do have some common ground. Trotter’s voluble reaction to discipline is one of them. 25 This description conveniently fits the descriptions of misbehavior set out in the employee handbook. 26 The Respondent’s brief states, “At that point Heard ordered the investigation of the veracity of Trotter’s testimony at the representation case hearing, and Trotter’s employment future at Superior was doomed; it was the straw that broke the camel’s back.” 27 The interpretation of whether Trotter’s oral requests for transfer from Galveston to Houston duty station was a “formal” act or not is the root of this “lying” issue. The Respondent construes Trotter’s failure to acknowledge his transfer request as a “formal” act a “lie.” 28 The Respondent’s brief alleges in part, “He [Trotter] lied under oath at the hearing in this case, stating that Heard told him in a joking The Respondent’s draconian approach towards Trotter’s al- leged “lies” carries with it serious burdens of proof to be credi- ble.29 These burdens are never met. Whether Trotter formally applied for transfer or simply asked for one is an insubstantial issue. The manner Trotter came to his Houston job is barely material in the scheme of representation cases issues. Yet, the Respondent never explained why this question was so tran- scendently important that alleged “lying “about it warranted discharge. It only argues that Heard believed the statement intentionally false, compelling him to act upon it.30 I find this premise pure subterfuge, masking the true motive of retaliation for Trotter’s testimony at the Board proceeding and his mani- fest support for a union whose officials the Respondent found “disreputable.”31 Bryant & Cooper Steakhouse, 304 NLRB 750 (1991); In-Terminal Service Corp., 309 NLRB 23 (1992). The Respondent thus violated Section 8(a)(1), (3), and (4) in disci- plining and then firing Trotter for “lying” to the Board.32 Big Three Industrial Gas & Equipment Co., 212 NLRB 800 (1974). D. The October 11 Letter to Employees The Respondent states the October 11 letter to employees is in full accord with Section 8(c) of the Act to express its views freely, provided there is no “threat of reprisal or force or prom- ise of benefit.” However, it alternatively argues that finding this letter threatening is a de minimus event, unworthy of a remedial order. The General Counsel contends, to the contrary, that this case follows squarely within the ambit of Big Three Industrial Gas & Equipment Co., supra.33 I am in full agree- manner not to be late for work.” “He lied under oath at the hearing in this case, stating that the hearing in the representation case was not over until after 12:00 p.m., when in fact it was over, according to the official transcript, at 11:11 a.m.” “He lied under oath at the hearing in this case, stating that he was late for work because he had to go home and change clothes. First, he left the hearing at 11:11 a.m. and did not report to work until 1:45 p.m., and he lives in Houston. Second, he could have changed his clothes at any number of places at or near the building where the representation hearing was held or somewhere in between.” 29 The General Counsel points out that the burden here is proving testimony false, uttered with intent to deceive, and relating to a substan- tial issue. The Respondent fails in every aspect of this burden, espe- cially showing why any of these alleged lies is intrinsically important. 30 I previously found Trotter to be a credible witness. My review of the record as a whole discloses no instance where Trotter dissembled on any substantive material issue. 31 In reaching this conclusion, I am satisfied that the history of other employee discipline sheds little light on whether Trotter was treated consistent with past practice. The Respondent simply never met the burdens shifted to it by the General Counsel under Wright Line, supra. 32 The Board, as the General Counsel points out, construes testimony before it “liberally.” This means even arguably false testimony is pro- tected as long as it is not willingly and knowingly false or uttered with an intent to deceive, citing Glover Bottled Gas Co., 275 NLRB 658 (1985). I concur. Objectively, Trotter, like all witnesses, is entitled to a broadly reasonable standard in a review of his testimony. Only egre- gious incidents qualify as perjury and, then, only after a considered due process inquiry by an appropriate body charged with policing such matters. 33 “The announcement of the discharge with the reason therefore was a deliberate and contrived attempt to instill fear in the minds of all its employees that any employee assistance to the Union could and would DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960 ment with the General Counsel. Heard’s letter to employees, on the eve of the election, is a blatant warning that he (the Re- spondent) fires employees who engage in union activity. Heard described Trotter as a good employee “apparently influenced by disreputable individuals resulting in his termination.” There is no subtlety in this message. The letter does precisely what Section 8(c) warns of, threatening reprisal and force against employees engaging in protected concerted activity flagrantly striking at the heart of what the purpose of the Act is about. Thus, I find the Respondent violated Section 8 (a)(1) of the Act by implicitly threatening employees who engage in union activ- ity or who participate in the Board proceedings. E. Trotter’s Challenged Ballot The Respondent challenged Trotter’s ballot at the election as a discharged employee. Since I find Trotter was discriminato- rily discharged, he is an eligible voter. Accordingly, I recom- mend that Trotter’s ballot be opened, counted, and a revised tally of ballots issue. If the election result establishes union majority, a Certification of Representative will issue as appro- priate. CONCLUSIONS OF LAW 1. By disciplining and then discharging Kelvin Trotter (the Respondent) has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act. 2. By impliedly threatening employees with discharge, the Respondent violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged an em- ployee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also reimburse the employee for any additional Federal and/or State income taxes that may re- sult from the lump sum payment of the monetary award. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended34 ORDER The Respondent, Superior Protection, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall result in dire consequences to the employees including discharge, if they engaged in similar conduct.” 34 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 1. Cease and desist from (a) Impliedly threatening employees in writing with dis- charge or discipline for supporting a union. (b) Discharging or otherwise discriminating against any em- ployee for supporting United Government Security Officers of America and its Local 229 or any other union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Kelvin Trotter full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make Kelvin Trotter whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the deci- sion to include reimbursing him for any additional Federal or State income taxes arising out of any lump sum payment to him. (c) Within 14 days from the date of this Order, remove from its files any reference to Kelvin Trotter’s unlawful discipline and discharge, and within 3 days thereafter notify him writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Houston, Texas, copies of the attached notice marked “Appendix.”35 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since September 4, 2001. 35 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SUPERIOR PROTECTION, INC. 961 (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found.