Wackenhut Corp.

WACKENHUT CORP. 348 NLRB No. 30 649 The Wackenhut Corporation and International Un- ion, Security, Police and Fire Professionals of America (SPFPA.). Case 1–CA–42113 September 29, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On January 23, 2006, Administrative Law Judge David L. Evans issued the attached decision. The General Coun- sel filed exceptions and a supporting brief. The Respon- dent filed a brief in support of the judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order. The judge found that the Respondent neither dis- charged nor constructively discharged employee Timo- thy Charette in violation of Section 8(a)(1) of the Act. We agree. I. FACTS The pertinent facts, essentially undisputed by the par- ties, are as follows. On Wednesday, September 22, 2005, Robert Norton, the Respondent’s operations man- ager at the Pilgrim Nuclear Power Station where Charette was employed, relieved Charette and employee Louis Ottino of their weapons and directed them to clean out their lockers. When Ottino asked Norton, “We’re not coming back, Bob?” in Charette’s presence, Norton looked down and shook his head. Norton then escorted Charette and Ottino to an office area where Gary Verseput, a training manager for the Re- spondent who is based in Chicago but travels to various sites to investigate disciplinary issues, met with Charette and Ottino separately. During the meeting with Charette, Verseput stated that Charette had been accused of threat- ening and harassing other employees, which Charette de- nied. At the end of the interview, Verseput told Charette that he was “suspended, pending determination[,]” and that a decision would be made by that Friday. After the meeting, Norton escorted Charette to his per- sonal vehicle and stated: “What these guys are doing to you, Tim, is wrong.” Charette responded, “I know, Bob, 1 In adopting the judge’s finding that employee Timothy Charette was not discharged in violation of Sec. 8(a)(1), we do not rely on the judge’s discussion of Charette’s subjective beliefs about whether he had been discharged. No exception has been filed to the judge’s conclusion that the Re- spondent violated Sec. 8(a)(1) by suspending Charette. but what can you do.” Charette then shook hands with Norton and left. On his way home, Charette telephoned Norton’s office. As Norton was not available, Charette told Cindy Kearney, the facility’s office manager: “I want to verbal[ly] tender my resignation, and I will fol- low with a fax.” Charette then drove to a commercial messaging center and faxed to Norton the following mes- sage: “Effectively immediately, I am resigning my posi- tion with the Wackenhut Corporation.” II. ANALYSIS In determining whether an employee has been termi- nated, the Board considers whether the employer’s words or actions “‘would logically lead a prudent person to believe that his [her] tenure has been terminated.’” North American Dismantling Corp., 331 NLRB 1557, 1557 (2000), enfd. in relevant part and remanded 35 Fed. Appx. 132 (6th Cir. 2002) (quoting Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir. 1964)). It is arguable that some of the Respondent’s conduct, considered in isolation, would tend to support a finding of discharge. As discussed above, Norton directed Charette and em- ployee Louis Ottino to clean out their lockers.2 It is un- disputed that this direction was consistent with the Re- spondent’s practice of implementing employee termina- tions and inconsistent with its practice of implementing employee suspensions. In addition, when Ottino asked Norton, “We’re not coming back, Bob?” in Charette’s presence, Norton looked down and shook his head. The General Counsel asserts that these actions were sufficient to give Charette the logical impression that he had been terminated. Even assuming that this is the case, however, subsequent statements by Verseput should have reasonably eliminated any such impression. Verseput clarified to Charette that he was being suspended, that a determination regarding Charette’s status had not yet been made, and that such a determination would be made within 2 days.3 Taking these subsequent, unambiguous 2 Also as discussed above, Norton also relieved Charette and Ottino of their weapons. However, Charette testified that he picked up his weapon at the armory every day. Thus, Norton’s conduct in this regard does not support a discharge finding. 3 In finding a discharge, the dissent relies in part on Verseput’s tes- timony that “he believed Charette would be fired.” However, Verseput qualified that testimony by stating, “I don’t get to make that decision.” In addition, Verseput did not recommend termination, but rather that the Respondent leave Charette’s fate in the hands of Entergy, the owner of the power plant where Charette worked. Moreover, the evidence suggests that Entergy would make up its own mind about Charette independently of what Verseput might recommend; Verseput testified that Entergy’s security manager told him: “You do what you have to do within Wackenhut . . . and then after that Entergy will take whatever DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 statements into account—and given Charette’s undis- puted hearing testimony that he was aware that employ- ees often were suspended without being terminated—we find that the entire course of the Respondent’s words and actions would not reasonably lead a prudent person in Charette’s position to believe, when he later resigned, that his employment had been terminated.4 MDI Commercial Services, 325 NLRB 53 (1997), enfd. denied in relevant part 175 F.3d 621 (8th Cir. 1999), cited by the General Counsel and the dissent, is distinguishable from this case. In that case, the employer deprived an employee of tools necessary to perform his job, and the judge discredited the employer’s “feigned” contrary assurances that the employee’s job duties would not change. Specifically, the employer’s plant manager, Lorraine Bunn, told employee Edward Saric that she knew he and his wife were engaged in union organizing and that she would not “tolerate” this “union crap.” Id. at 53. Bunn then told Saric to turn over his keys, which Saric needed to perform his job duties. Id. Bunn claimed that she was concerned about the security and safety of the facility, but the judge rejected that claim as “patently specious.” Id. at 65. Bunn then purported to reassure Saric that his job duties would not change and that he would have access to the keys during working action it needs to take.” In any event, whatever Verseput might have believed, that belief was never shared with Charette. 4 Disagreeing with our finding in this regard, the dissent points out that Norton said to Charette, after Charette’s meeting with Verseput, “What these guys are doing to you . . . [is] wrong.” Contrary to our colleague, we do not find that Norton’s statement to Charette provided a basis for Charette to reasonably conclude that he would be termi- nated. First, Norton’s statement is ambiguous. The reference to “these guys” could reasonably be construed as referring to the employees who were accusing Charette of misconduct, rather than to Verseput. We disagree with the dissent’s statement that such an interpretation would be “highly implausible.” In fact, we find it more plausible to interpret “these guys” as referring to Charette’s accusers (plural) rather than to Verseput (singular). Indeed, Charette testified that he interpreted Nor- ton’s statement to mean that Norton did not believe the accusations. Further, contrary to the dissent, we view the other employees’ actions in accusing Charette of misconduct as clearly “doing” something to Charette. Without their accusations, there would have been nothing for Verseput to investigate. Second, given Charette’s interpretation of Norton’s statement to mean that Norton did not believe the accusations, and the fact that Norton is the second-in-command at the facility, Charette reasonably could have concluded that it was genuinely possible that he would be found innocent of the accusations and returned to work, or that disci- pline short of discharge would be imposed. We disagree with the dis- sent’s view that Norton’s statement was an admission of powerlessness to stop Charette’s “imminent discharge.” That view evidently depends on the dissent’s conclusion that Norton was referring to Verseput. As explained above, we disagree with that conclusion. hours; but the judge discredited these statements in light of Bunn’s “patently specious” asserted security concerns. Id. The Board adopted the judge’s discrediting of Bunn’s “feigned attempts to assure [Saric] that his job responsibilities would remain the same.” Id. at 53. Thus, in MDI the credited testimony supported a finding that a prudent person in Saric’s circumstances would have believed that he had been deprived of tools essential to perform his job. Here, the Respondent did not direct Charette to take any actions that would have precluded him from continu- ing to perform his job duties. Although Norton disarmed Charette before suspending him, as discussed above, this would not have reasonably indicated to Charette that he was being permanently deprived of the tools necessary to perform his job because Charette disarmed every day. Further, unlike the employer in MDI Commercial Ser- vices, supra, there is no assertion or basis for finding that Verseput made “patently specious” comments to Cha- rette that would have caused Charette to reasonably dis- believe Verseput’s statement that he was merely being suspended pending a final determination.5 Even assuming that the Respondent’s actions could have resulted in Charette’s reasonable belief that he would be terminated, this would not compel a finding that Charette was “discharged” when he resigned. In this connection, in a decision involving an illegal threat to close a facility, the Board held that “no matter how rea- sonable an employee’s feeling of insecurity may be as a result of an employer’s plant closure threat, it does not permit the employee to elevate, unilaterally, the signifi- cance of that unlawful activity” by “convert[ing]” the 5 The other decisions cited by the dissent—Dublin Town Ltd., 282 NLRB 307, 308 (1986), and Rapid Armored Truck Corp., 281 NLRB 371, 383 (1986)—also are distinguishable from this case. In Dublin Town Ltd., the direction to an employee to clean out his locker followed a respondent official’s statement that he wanted certain other employ- ees “out of here” and the employee’s response that he would not return to work without those other employees. Further, the respondent’s direction to clean out the locker was accompanied by the respondent official’s handing out of the employees’ paychecks, offering to act as a job reference for the employee at issue, and informing the employee that his vacation pay would be mailed to him. In Rapid Armored Truck Corp., one employee who was directed to clean out his locker was simultaneously told that he was no longer working for the respondent and was given the name of another employer where he could seek work. Another employee told to clean out his locker was simultane- ously asked for the return of his identification card. Further, the re- spondent in Rapid Armored Truck Corp. made unlawful threats to close the operation and to discharge picketing employees, stating that they would never work for the respondent again. The instant case does not involve remotely similar accompanying statements or actions that would have left Charette with a reasonable belief that he had been discharged. WACKENHUT CORP. 651 illegal threat “into an unlawful discharge.” Groves Truck & Trailer, 281 NLRB 1194, 1195–1196 (1986).6 Simi- larly, in Dilbert, Bancroft & Ross Co., 193 NLRB 553, 564 (1971), the Board declined to find a discharge where a suspended employee quit, notwithstanding that the sus- pension was discriminatory and that the employee may have believed that he would be discharged the following day. Consistent with this precedent, although the judge here found that Charette’s suspension was illegal (and, as noted, no exceptions were filed to that finding), that did not permit Charette to elevate the significance of that suspension by converting it into an unlawful discharge— regardless of whether he believed he would subsequently be discharged. Our dissenting colleague mischaracterizes our decision as holding that an employee in Charette’s position “may not take reasonable steps to protect himself from further retaliation.” Not at all. Charette was free to, and did, take the step he deemed warranted to protect himself from a discharge. He quit first. We so find. We also disagree with the dissent’s statement that our decision “creates a windfall for a culpable employer.” The Respondent has been shown to be culpable for ille- gally suspending Charette, and we are holding it respon- 6 Although Groves Truck & Trailer involved the Board’s reversal of a judge’s finding of constructive discharge—rather than actual dis- charge—that decision is relevant here. The plain wording of the Board’s holding equally applies to actual and constructive discharges. Further, it is well established that an employee’s decision to quit in anticipation of a discharge is not a constructive discharge. See, e.g., Price’s Pic-Pac Supermarkets, 256 NLRB 742, 749 (1981), enfd. 707 F.2d 236 (6th Cir. 1983). There is no basis in law or logic for finding that an anticipatory quit can constitute an actual discharge when it does not even rise to the level of a constructive discharge Our dissenting colleague seeks to distinguish Groves Truck & Trailer on the grounds that the closure threat was not personally aimed at the employee who quit, and that the threatened closing was not “im- minent.” We find these grounds of distinction unconvincing. As to the former, regardless of whether the threat was aimed at the individual employee, it certainly would have affected each employee personally. As to the latter, the employer in Groves threatened on March 11 to close “shop 2,” and it laid off most of its shop 2 employees that same month. Thus, the threatened action, or something very close to it, fol- lowed the threat imminently. More importantly, however, the Groves Board, in finding a quit instead of a discharge, did not rely on the threatened closure not being imminent. Rather, it relied on the fact that it had not yet happened: “Unless and until an employer carries out that threat, employees’ working conditions remain static.” 281 NLRB at 1195 (emphasis added). So also here: unless and until a discharge decision was unambiguously communicated to Charette, his employ- ment status remained unchanged. In addition, Groves presented a circumstance that is not even present here: an explicit threat that, car- ried out, would mean loss of employment. Thus, this case presents an even weaker basis for finding discharge than did Groves. Similarly, Rock-Tenn Co., 319 NLRB 1139 (1995), enfd. 101 F.3d 1441 (D.C. Cir. 1996), relied on by the dissent, involved an explicit threat of layoff. sible for that action. There is no basis for finding that the Respondent made a decision to terminate Charette, or that such a decision was imminent. As such, we are sim- ply declining to hold the Respondent culpable for a deci- sion it never made and an action it never took. For the foregoing reasons, we conclude, as did the judge, that the General Counsel failed to establish that the Respondent in fact terminated Charette. Accord- ingly, we adopt the judge’s conclusion that the Respon- dent did not discharge Charette in violation of Section 8(a)(1). Further, we agree with the judge, for the reasons he states, that the General Counsel also failed to establish that the Respondent constructively discharged Charette in violation of Section 8(a)(1). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, the Wackenhut Corporation, Plymouth, Massachusetts, its officers, agents, successors, and assigns, shall take the actions set forth in the Order. MEMBER LIEBMAN, dissenting in part. The Respondent does not contest that it unlawfully suspended employee Timothy Charette. The majority holds, however, that when Charette promptly resigned— rather than wait to be fired—the Respondent bore no responsibility. But the Board’s case law makes clear that we must view the situation “‘through the [employee’s] eyes and not as the employer would have viewed them,’” and that we must hold the employer “responsible when its statements or conduct create an uncertain situation for the affected employee[].” Kolkka Tables & Finnish- American Saunas, 335 NLRB 844, 846 (2001), quoting Brunswick Hospital Center, 265 NLRB 803, 810 (1982). As I will explain, here Charette reasonably believed that he had been, or was about to be, unlawfully fired. I. The facts are essentially undisputed. On the day in question, Charette and Louis Ottino, a fellow guard at the Respondent’s Plymouth site, were met at the end of their shift by Operations Manager Robert Norton. Norton, who was “second-in command” at the facility, relieved them of their weapons and escorted them to the locker room. When they arrived at the locker room, Norton ordered them to clean out their lockers and take all per- sonal belongings with them. It is undisputed that no em- ployee who was merely suspended had ever been di- rected to clean out his locker, and that only terminated employees were ordered to do that. Charette specifically testified that he was aware that no one, in his 18 years on the job, had been told to clean out his locker without be- ing terminated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652 After he had cleaned out his locker, Charette asked Norton, “We’re not coming back, Bob?” Norton looked down and shook his head “no.” Norton escorted Charette and Ottino to an office area where Training Manager Gary Verseput was waiting for them.1 After Verseput interviewed Charette, he advised Charette that he was suspended “pending determination” and that there would be a determination in 2 days. Norton then escorted Charette to his vehicle, where he told Charette, “What these guys are doing to you, Tim [is] wrong.” On the drive home, Charette called Norton to submit his resignation, and faxed a resignation shortly after- wards. Charette testified that he believed that the deci- sion to discharge him had been made even before he was brought before Verseput. He thus viewed Verseput’s statement about a “final determination” as a mere formal- ity. Charette further testified that, based on his experi- ence as a shop steward representing other discharged employees, he knew that a discharge would harm his future employment prospects. In an effort to avoid those consequences, Charette tendered his resignation. II. The majority rightly acknowledges that “some of the Respondent’s conduct” (Norton’s order to Charette to clean out his locker, as well as Norton’s affirmative re- sponse to the question “We’re not coming back, Bob?”) “would tend to support a finding of discharge.” But the majority concludes that Verseput’s later statements (that Charette was being suspended and that a final determina- tion regarding Charette’s status would be made within 2 days) “should have reasonably eliminated any . . . im- pression” that Charette was being fired. In reaching that conclusion, the majority fails to see things from the per- spective of an employee in Charette’s situation. To begin, it is established that Charette’s suspension was unlawful. The Respondent has not excepted to that finding. We must presume, then, that a reasonable em- ployee would perceive that the Respondent was acting illegally in pursuing discipline. Under such circum- stances, Charette was hardly required (1) to accept Ver- seput’s statements at face value, (2) to believe that his status would be fairly reviewed, and (3) to conclude that he might keep his job, despite the Respondent’s unlawful hostility toward him. 1 Verseput, is responsible for traveling to Wackenhut sites across the country to investigate disciplinary issues. It was Verseput who had ordered that Charette and Ottino be directed to clean out their lockers. Verseput admitted at the hearing that he issued that order because he believed that the two employees would be fired. A reasonable employee, moreover, would balance Verseput’s words against the clear, contrary message conveyed not only by the clean-out-your-locker order,2 but also by Norton’s statements, including the admis- sion—made after the meeting with Verseput—that “What these guys are doing to you . . . [is] wrong.”3 Even if the Respondent’s message to Charette was merely mixed, the uncertainty created, from an em- ployee’s perspective, was enough to establish a violation of Section 8(a) (1). See Kolkka Tables, supra, 335 NLRB at 846–847 (collecting cases). Despite the major- ity’s asserted focus on the “entire course of the Respon- dent’s words and actions,” its decision actually rests on Verseput’s words, considered in isolation. That his statements, on their face, may be “unambiguous” is hardly decisive here. The Board has not hesitated to find a violation in simi- lar circumstances. Contrary to the majority, the Board’s decision in MDI Commercial Services, 325 NLRB 53 (1997), is on point. In that case, the employer took away the employee’s keys and told him he could no longer be trusted. In response, the employee immedi- ately resigned, and his resignation was accepted. The Board found that the employer’s actions led the em- ployee to believe that his termination was imminent and therefore had effectively discharged the employee. Id. at 54. Here, Charette was disarmed and told to clean out his locker. The message to Charette was the same as the 2 The Board has repeatedly found that, in similar circumstances, di- recting an employee to clean out his locker is consistent with discharge. Dublin Town Ltd., 282 NLRB 307, 308 (1986); Rapid Armored Truck Corp, 281 NLRB 371, 383 (1986). 3 The majority argues that this statement did not “provide a basis for Charette to reasonably conclude he would be terminated.” First, according to the majority, the statement “could reasonably be construed as referring to the employees who were accusing Charette of misconduct, rather than to Verseput.” That interpretation strikes me as highly implausible, given the context. Charette’s accusers were not “doing” anything “to” Charette; Verseput was. Even if the majority had suggested a plausible alternative interpretation, that would not suffice to make Charette’s interpretation unreasonable. Second, the majority contends that a reasonable employee in Cha- rette’s position could have concluded from Norton’s statement, which suggested that Norton did not believe the accusations, that “there was a possibility that he [Charette] would be found innocent of the charges and returned to work or that discipline short of discharge would be imposed.” This interpretation, too, is highly implausible. There was nothing hopeful in Norton’s message in terms of what lay ahead for Charette (except, perhaps, to a Pollyanna). Norton’s statement was a clear admission that he was powerless to do anything to stop the immi- nent discharge of Charette. Here, too, the majority’s alternative inter- pretation does not rule out a contrary one. WACKENHUT CORP. 653 message to the discharged employee in MDI Commercial Services: you no longer work here.4 The majority insists that “[e]ven assuming that the Re- spondent’s actions could have resulted in Charette’s rea- sonable belief that he would be terminated, this would not compel a finding that Charette was ‘discharged’ when he resigned.” But the cases relied upon by the ma- jority are easily distinguishable on their facts.5 Here, as explained, the evidence establishes that Charette could reasonably have believed that he already had been fired or would be fired imminently—not merely that termina- tion was a possibility at some indefinite time in the fu- 4 The majority’s attempt to distinguish the earlier case is unpersua- sive. The majority insists that the Respondent “did not direct Charette to take any actions that would have precluded him from continuing to perform his job duties.” But he was told to clean out his locker (a clear indication, given past practice, that he was being permanently removed from the facility), and he was disarmed by a high-level manager (which was hardly part of his daily routine, despite the majority’s suggestion). The majority further argues that, in contrast to statements made by the plant manager in MDI, Verseput’s statements to Charette were plausi- ble. As explained, however, Charette had good reason to disbelieve them. The Respondent was pursuing unlawful discipline, as one of its officials admitted. 5 Groves Truck & Trailer, 281 NLRB 1194 (1986), involved an em- ployee’s resignation in response to a threat of plant closing, which the Board described there as “only a threat of some future action which may or may not be carried out.” Id. at 1195. The threat was not aimed at the employee personally, nor was the closing imminent. Notably, the Board will find a violation where an employee resigns in the face of an imminent unlawful termination, even if he is not the individual target of the action. See Rock-Tenn Co., 319 NLRB 1139, 1151–1152 (1995), enfd. 101 F.3d 1441 (D.C. Cir. 1996) (employee resigned because of pending mass layoff that violated Sec. 8(a)(5)). In Dibert, Bancroft & Ross Co., Ltd., 193 NLRB 553 (1971), an em- ployee resigned after being unlawfully suspended for a day, ostensibly for his admitted poor attendance. The Board adopted the administrative law judge’s finding that the employee “quit because of the independent type of person he was; he believed that the suspension was unfair and discriminatory and rather than accept the suspension[,] he quit.” Id. at 564. The judge found that the employer “clearly had not discharged” the employee. Id. (Emphasis added.) The evidence here, in contrast, does not support a finding either that Charette’s reaction was that of an unreasonably hot-tempered employee or that the Respondent clearly had not discharged him, in effect, before he resigned. Finally, the majority’s assertion that “it is well established that an employee’s decision to quit in anticipation of a discharge is not a con- structive discharge,” is an overstatement. As the exemplary case cited by the majority makes clear, a mere threat to discharge an employee will not justify his resignation, particularly where the employer then takes steps to reassure the employee that he has not been, and will not be, discharged. See Price’s Pic-Pac, 256 NLRB 742, 749 (1981). A resignation immediately following unlawful discipline, and in reason- able anticipation of imminent discharge, presents a different situation. In such a case, the employer is the wrongdoer, and the burden of any uncertainty as to whether the discharge ultimately would have been effectuated thus is properly resolved against the employer. Put some- what differently, the employee’s resignation should not create a wind- fall for a culpable employer. ture. Indeed, manager Verseput himself testified that he believed Charette would be fired. III. Under the majority’s decision, an employee in Cha- rette’s position, already the victim of unlawful discipline, may not take reasonable steps to protect himself from the adverse consequences of further retaliation. Instead, he must wait for the other shoe to drop. Here, in the face of seemingly imminent discharge, Charette resigned, pre- venting a discharge from appearing on his employment record and jeopardizing his future employment pros- pects. Our law recognizes that a resignation in such cir- cumstances should not cause an employee to forfeit his claim to a remedy from the wrongdoing employer.6 The employer in this case clearly caused the em- ployee’s resignation, a reaction that it would reasonably have foreseen. It is appropriate, then, to hold the em- ployer responsible for the resignation and liable for remedying the harm suffered by the employee as a result. The majority’s contrary finding serves no clear statutory policy, is contrary to our precedent, and fails to ade- quately protect the exercise of Section 7 rights. Accord- ingly, I dissent. Avrom J. Herbster, Esq., for the General Counsel. Marvin Goldstein, Esq., of Newark, New Jersey, for the Re- spondent. Desiree Sullivan, of Plymouth, Massachusetts, for the Charging Party. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This case under the National Labor Relations Act (the Act) was tried before me in Boston, Massachusetts, on December 12–13, 2005.1 On Sep- tember 27, International Union, Security, Police and Fire Pro- fessionals of America (SPFPA) filed the charge in Case 1–CA– 42113 alleging that The Wackenhut Corporation (the Respon- dent) had committed certain unfair labor practices under the Act. After administrative investigation of the charge, the Gen- eral Counsel of the National Labor Relations Board (the Board) issued a complaint alleging that the Respondent had suspended and discharged employee Timothy Charette in violation of Section 8(a)(1) of the Act. The Respondent duly filed an an- 6 See Winer Motors, Inc., 265 NLRB 1457, 1469 (1982) (employee was constructively discharged where he was compelled to quit before he received so many unlawful warnings that his prospects for getting another job were jeopardized). The majority suggests that Charette was, in fact, free to protect him- self by quitting. The catch, however, is that upon doing so, he forfeited his right to seek redress from the Respondent for placing him in that position. Charette’s choice, then, was hardly free. 1 Unless otherwise indicated, all dates mentioned are in 2005. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654 swer to the complaint admitting that this matter is properly before the Board but denying the commission of any unfair labor practices. Upon the testimony and exhibits entered at trial, and after oral arguments that counsel made at trial, I enter the following findings of fact and conclusions of law. I. JURISDICTION As it admits, at all material times the Respondent, a corpora- tion, with offices and places of business in various States of the United States, including a facility that is located at Plymouth, Massachusetts, has been engaged in the business of providing guard and security services to clients including Entergy Nuclear Generation Company, which client operates a nuclear power plant near Plymouth. During 2004, the Respondent, in the course and conduct of said business operations, purchased and received at the Plymouth facility goods valued in excess of $50,000 directly from suppliers that are located at points out- side of Massachusetts. Therefore, at all material times the Re- spondent has been an employer that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts The Respondent recognizes the Charging Party as the collec- tive-bargaining representative of guards whom it employs at the Pilgrim Nuclear Power Station (the PNPS) which is owned by Entergy. There was in effect between the Respondent and the Charging Party at all relevant times a contract that provides for grievance and binding arbitration procedures. Alleged discrimi- natee Charette was, until the events of this case, a long-service bargaining unit employee who had an essentially unblemished disciplinary record. Edward Neary is the PNPS project manager; Robert Norton is its operations manager who reports to Neary. Gary Verseput, whose office is near Chicago, is a training manager for the Re- spondent; Verseput’s responsibilities include traveling to various sites in the United States to investigate disciplinary issues. For some time, Entergy has urged the Respondent to estab- lish at the PNPS a system that would test the effectiveness of plant protection methods and procedures. The Respondent cre- ated a plan for a Special Operations Group (SOG) for this pur- pose. The SOG plan called for volunteers to engage in “war game” types of activities that would test security arrangements. Implementation of the SOG plan was (at least initially) opposed by the Union’s executive board. (The Union claimed that estab- lishment of the program should be negotiated and that those negotiations could not be held until other outstanding issues were first resolved.) Opposition to the implementation of the SOG program, however, was not universal within the bargain- ing unit, and there developed “pro-SOG” and “anti-SOG” fac- tions among the employees. On August 19, the Respondent posted a notice that employee applications for participation in the SOG program were being solicited. On August 22, the Union filed a grievance protesting the implementation of the SOG program as an unlawful unilat- eral action by the Respondent. (The lawfulness of the imple- mentation of the SOG program is not in issue in this case.) Three of the employees who opposed the SOG program were Timothy Charette, Louis Ottino, and James Merada. On Sep- tember 22, the Respondent suspended Charette, Ottino, and Merada. On September 28, the Respondent discharged Ottino, and on September 29 the Respondent discharged Merada. Whether the Respondent discharged Charette about the same time is an issue in this case. Originally, the complaint alleged that the suspensions of Charette, Ottino, and Merada, the (ad- mitted) discharges of Ottino and Merada, and the (disputed) discharge of Charette, violated Section 8(a)(1). Before trial, however, the General Counsel severed from the complaint the allegations that relate to the suspensions and discharges of Me- rada and Ottino (on the basis that those suspensions and dis- charges had become the subjects of an arbitration proceeding). Therefore, the remaining allegations before the Board relate only to Charette. The complaint alleges that, as well as being unlawfully suspended, Charette was unlawfully discharged or, in the alternative, constructively discharged. Although the Re- spondent admits suspending Charette, it denies that it dis- charged him or constructively discharged him. Neither Ottino nor Merada testified. Charette testified that at the end of his shift on Wednesday, September 22, he and Ottino were met by Norton who relieved them of their weapons and escorted them to the locker room. Norton told Ottino and Cha- rette to clean out their lockers and take all personal belongings with them. Norton then escorted Ottino and Charette to an of- fice area where Verseput and Norton met with them separately. According to Charette, Verseput identified himself as an inves- tigator for the Respondent. Verseput told Charette that he had been accused of threatening and harassing employees about their volunteering for the SOG program. Verseput then asked Charette if he had ever threatened or intimated anyone in con- versations about the program. Charette answered that he had not. Verseput then asked Charette to tell him about all of his conversations about the SOG program with other employees. Charette asked Verseput to be more specific, but Verseput re- plied that he could not do so. Charette then told Verseput about two conversations that he had had with other employees, but he denied to Verseput that he had made any threatening or intimi- dating remarks in either conversation. Verseput took a written statement from Charette in which Charette also denied any threatening or intimidating conduct. Charette further testified that at the end of the interview Verseput told him that “you are suspended, pending determination.” Verseput further told Cha- rette that there would be “a determination by Friday” about any further action against Charette. Norton then escorted Charette to his personal vehicle. On the way to the vehicle, further ac- cording to Charette, Norton stated that “[w]hat these guys are doing to you, Tim, is wrong.”2 Charette’s testimony about these exchanges with Norton and Verseput is undenied, and I found it to be credible. (Verseput testified, but Norton did not.) Further according to Charette, on his way home on Septem- ber 22, he called Norton’s office. Norton was not available, and 2 The Tr. at. 84, L. 9, is corrected to change “if wrong” to “is wrong.” WACKENHUT CORP. 655 Charette spoke to Cindy Kearney, the Respondent’s office manager at the Plymouth facility. Charette told Kearney, “I want to verbally tender my resignation, and I will follow with a fax.” (If Kearney replied, Charette did not so indicate in his testimony.) Charette then drove to a commercial messaging center and faxed to Norton the message that: “Effective imme- diately, I am resigning my position with The Wackenhut Cor- poration.” When asked on direct examination why he had sub- mitted a resignation, Charette responded: Because in my mind I was terminated by the Com- pany, I knew the ramifications of termination, I have rep- resented many folks in the past, I had to think about my future, I had to think about supporting my family, and I knew that fighting a termination over a year long period or longer, and is trying to find gainful employment would be difficult. . . . [I]n past terminations where it was clear that individu- als would be terminated, I had negotiated deals where it was imminent these people were going to be terminated, the Company knew it, the project manager knew it, and on several occasions I negotiated a deal where they could voluntarily resign, prior to termination, and their record would be clear. Charette explained that he was referring to a prior incident in which the Respondent’s supervisors had caught another employee sleep- ing. Charette, on behalf of the Union, was involved in negotiating an agreement whereby the employee was permitted to resign rather than having a discharge in his employment record. Charette then testified that he had felt, even before his inter- view with Verseput, that the determination that he was to be discharged had already been made because, in his prior experi- ence, employees were not asked to clean out their lockers unless they were being discharged. On cross-examination, Charette testified that at the end of his interview with Verseput, Verseput [I]nformed me that I was—I would be suspended from this point, at the termination of the interview, and that he would— pending the outcome of the investigation, that he would— they would know by Friday. Charette further acknowledged that he knew that suspensions of other employees had, in the past, occurred without the em- ployees being discharged, and he acknowledged that his resig- nation came within 1-1/2 hours of his interview with Verseput. Verseput testified that he came to the PNPS after the Re- spondent received an employee complaint of racial harassment by other employees. When he arrived, Project Manager Neary told him that, as well, there had been “some possible threats or intimidation or influence over a number of officers who had volunteered” for the SOG program. Verseput took written statements from several employees, only 2 of which name Cha- rette. The statement of employee Christopher Maher relates that Charette had called him a “faggot” and a “cocksucker” because Maher had volunteered for the SOG program. A statement that Verseput secured from employee Thomas Fitzpatrick relates that, while Charette had not done or said anything to Fitz- patrick, Fitzpatrick had seen Charette standing in a threatening posture when talking to another employee who had volun- teered. Fitzpatrick’s statement further relates that some un- named employee had told him that another unnamed employee had told the first unnamed employee that “if this was a real union I [Fitzpatrick] would find myself in the trunk of a car.” Verseput testified that, although Fitzpatrick did not so indicate in his written statement, he orally told Verseput that he believed that it was Charette who had made the “trunk” threat. Verseput testified that he believed the written statements of Maher and Fitzpatrick and the oral statement of Fitzpatrick. At trial, Cha- rette denied any such conduct. Neither Maher nor Fitzpatrick testified. Verseput testified that he had believed that Charette, Merada, and Ottino would be discharged and that he ordered that they be told to clean out their lockers, even before the suspensions, because it would be more expeditious than bringing them back through secured areas later for that purpose. B. Analysis and Conclusions Charette was suspended because the Respondent’s agents be- lieved that, while arguing against employee participation in the SOG program, he had engaged in offensive conduct. The SOG program had been made the subject of a union grievance, and Charette’s advocacy activity was an individual action that was the “logical outgrowth of the concerns expressed by the group” in the form of that grievance. Mike Yurosek & Son, 306 NLRB 1037 (1992), citing Salisbury Hotel, 283 NLRB 685, 687 (1987), and Every Woman’s Place, 282 NLRB 413 (1986), enfd. mem. 833 F.2d 1012 (6th Cir. 1987). Charette’s advo- cacy, itself, was therefore protected concerted activity. In the seminal case of NLRB v. Burnup & Simms, 379 U.S. 21, 22 (1964), the Supreme Court concisely stated: In sum, Section 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a pro- tected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. In this case the Respondent offered only hearsay (and dou- ble-hearsay) testimony that Charette had engaged in miscon- duct while advocating against employee participation in the SOG program. Moreover, Charette was credible in his testi- mony that he did not engage in the alleged misconduct. There- fore, under Burnup & Sims, the Respondent has failed to prove that, in the course of his protected activity of advocacy, Cha- rette exceeded the protection of the Act. Therefore, the suspen- sion of Charette because of alleged, but unproved, misconduct during his course of protected concerted activity violated Sec- tion 8(a)(1), as I find and conclude. The complaint next alleges that the Respondent discharged Charette. Charette freely acknowledged that Verseput told him that he was “suspended” pending final determination of his status, that the determination would be made within 48 hours, and that some other suspensions had failed to result in dis- charges. Under these circumstances, I find that Charette could not have reasonably concluded that he had been discharged. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 Even if it could be argued that, in this case, an employee such as Charette could reasonably have concluded that he had been discharged, I find that Charette did not reach that conclu- sion. If Charette had felt that he had been discharged, he would not have submitted a resignation. Nor did Charette ask for per- mission to resign in lieu of discharge, a procedure that he had previously negotiated for another employee. There is a line of cases that indicates that, if an employee is given reason to be- lieve that he had been discharged, his not appearing for work cannot be held to be the logical equivalent of a resignation. Impression-of-discharge theories apply, however, only where an employee’s absence is contended to constitute a quitting. Here, the Respondent does not rely on Charette’s absences after September 22 as a quitting; it relies on Charette’s express res- ignation. Accordingly, I find and conclude that the Respondent did not discharge Charette, and this allegation of the complaint must be dismissed. The General Counsel is therefore left only with the alternative theory of constructive discharge. As explained in Controlled Energy Systems, Inc., 331 NLRB 251 (2000), the Board has applied constructive-discharge theo- ries only where employees quit their employment in two situa- tions: (1) where employees are offered a “Hobson’s choice” between sacrificing their jobs or their statutory rights,3 and (2) where in response to an employee’s union activities, an em- ployer deliberately makes working conditions so unbearable that the employee is forced to quit.4 The General Counsel does not contend that Charette’s case falls within either of the recog- nized categories of constructive discharge. Instead, the General Counsel argues that Charette was constructively discharged because he felt that he was going to be discharged. This would be a new, third category which the Board has not recognized and which I have no authority to establish. Accordingly, I shall recommend that the constructive discharge allegation of the complaint also be dismissed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The National Labor Relations Board orders that the Respon- dent, The Wackenhut Corporation, Plymouth, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending employees or otherwise discriminating against its employees because of their protected concerted ac- tivities. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 3 See, e.g., Goodless Electric Co., 321 NLRB 64, 67–68 (1996). 4 See, e.g., Grocers Supply Co., 294 NLRB 438 (1989). 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2. Take the following affirmative actions necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, remove from its files any references to the September 22, 2005, suspension that it issued to Timothy Charette and within 3 days thereafter notify Charette in writing that this has been done and that the suspension will not be used against him in any way. (b) Within 14 days after service by the Region, post at its fa- cilities in Plymouth, Massachusetts, copies of the attached no- tice marked “Appendix.”6 Copies of the notice, on forms pro- vided by the Regional Director for Region 1, 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 including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 22, 2005. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent had taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. 6 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.” WACKENHUT CORP. 657 WE WILL NOT suspend you, or otherwise discriminate against you, because you have engaged in activities that are protected by Federal law. WE WILL NOT in any like or related manner interfere with, re- strain or coerce you in the exercise of the rights guaranteed to you by Federal law. WE WILL, within 14 days of the Board’s Order, remove from our files any references to the September 22, 2005 suspension that we issued to Timothy Charette, and WE WILL, within 3 days thereafter, notify Charette in writing that this has been done and that the suspension will not be used against him in any way. THE WACKENHUT CORPORATION