International Union, Security, Police and Fire Professionals of America, Local 444 (Security Support

National Labor Relations Board - Board Decisions

Feb 28, 2014

360 N.L.R.B. 430 (N.L.R.B. 2014)

430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 57
International Union, Security, Police and Fire Profes-
sionals of America (SPFPA), and its Amalga-
mated Local 444 and Cordarryl Nelson. Case
05–CB–099029
February 28, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On September 24, 2013, Administrative Law Judge
Michael A. Rosas issued the attached decision. The Re-
spondent filed exceptions with supporting argument.
The General Counsel filed an answering 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 and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3

1 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.
2 We agree with the judge’s conclusion that Union Steward Brunson
acted as the Respondent’s agent under the facts presented. In addition
to the reasons given by the judge, we rely on the record evidence estab-
lishing that Brunson’s authority, as a shop steward, included acting for
the Respondent in investigating and presenting grievances, representing
employees in disciplinary meetings with management, resolving work-
place disputes without the Respondent’s president’s approval, and that
the Respondent’s president considered Brunson to be the president’s
liaison with the Employer and had instructed employees to refer work-
place issues to Brunson. See, e.g., Carpenters Local 296 (Acrom Con-
struction), 305 NLRB 822, 822 fn. 1 (1991) (finding agency where
steward’s duties included authority to resolve workplace problems); see
generally Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB
832 (1977), enfd. mem. 586 F.2d 835 (3d Cir. 1978) (discussing appli-
cation of common law of agency to union stewards).
The Respondent argues that Brunson was obliged to report fellow
employees’ misconduct because of his heightened duty as a security
guard. The existence of any such duty is of little significance here, as
the record shows that an agent of the Union made a belated, misleading
and incomplete report about a coworker’s nonthreatening conduct
(which the Employer itself observed but did not act upon) directly to
the Employer’s client in the context of evidence that the Union’s agent
was motivated by the coworker’s efforts to remove and replace the
Union as the bargaining representative. As to Respondent’s challenges
to certain of the ALJ’s factual findings, we find that, even assuming
that the ALJ erroneously found the challenged facts, any such errors
would not affect our decision.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and to delete the requirement
that the Respondent, which has never employed Cordarryl Nelson, file
an earnings report for him with the Social Security Administration.
ORDER
The National Labor Relations Board orders that the
Respondent, International Union, Security, Police and
Fire Professionals of America (SPFPA) Local 444, De-
troit, Michigan and Rahway, New Jersey, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause or causing the discipline
and/or discharge of any employee because of his or her
dissident union activity and/or other protected concerted
activities.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Cordarryl Nelson whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(b) Compensate Cordarryl Nelson for any adverse in-
come tax consequences of receiving make-whole relief in
one lump sum.
(c) Within 14 days from the date of this Order, ask Se-
curity Support Services, LLC and NASA to remove from
their files any reference to the unlawful discipline and
discharge of Cordarryl Nelson, and, within 3 days there-
after, notify the employee in writing that this has been
done and that the discipline and discharge will not be
used against him in any way.
(d) Within 14 days from the date of this Order, notify
Security Support Services, LLC and NASA that it has no
objection to the reemployment of Cordarryl Nelson and
seek his reinstatement with Security Support Services,
LLC and NASA.
(e) Within 14 days after service by the Region, mail
copies of the attached notice marked “Appendix,”4 at its
own expense, to all employees in the bargaining unit who
were employed by Security Support Services, LLC at
NASA Headquarters, Washington, D.C., at any time
since November 10, 2012. Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre-
sentative, shall be mailed to the last known address of
each of the employees.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) LOCAL 444 431
(f) Within 14 days after service by the Region, deliver
to the Regional Director for Region 5 signed copies of
the notice in sufficient number for posting by Security
Support Services, LLC at its NASA Headquarters, Wash-
ington, D.C. jobsite, if it wishes, in all places where no-
tices to employees are customarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT attempt to cause or cause your discipline
and/or discharge for engaging in dissident union activity
and/or other protected concerted activities.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL make Cordarryl Nelson 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 compensate Cordarryl Nelson for any ad-
verse tax consequences of receiving make-whole relief in
one lump sum.
WE WILL, within 14 days from the date of the Board’s
Order, ask Security Support Services, LLC and NASA to
remove from their files any reference to the unlawful
discipline and discharge of Cordarryl Nelson, 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.
WE WILL, within 14 days from the date of the Board’s
Order, notify Security Support Services, LLC and NASA
that we have no objection to the reemployment of
Cordarryl Nelson and WE WILL seek his reinstatement
with the Security Support Services, LLC and NASA.
INTERNATIONAL UNION, SECURITY, POLICE AND
FIRE PROFESSIONALS OF AMERICA (SPFPA)
LOCAL 444
Neelam Kundra, Esq., for the General Counsel.
Michael J. Akins, Esq. (Gregory, Moore & Brooks, P.C.), for
the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Washington, District of Columbia, on July 29,
2013. Cordarryl Nelson (Nelson), the charging party, filed the
charge on February 25, 2013, and the General Counsel issued
the complaint on May 10, 2013. The complaint alleges that the
International Union, Security, Police and Fire Professionals of
America (SPFPA) Local 444 (the Union) violated Sec.
8(b)(1)(A) and (2) of the National Labor Relations Act (the
Act) in November 20121 by causing Security Support Services,
LLC (the Company) to terminate Nelson’s employment be-
cause of his dissident union activities. The Union denies the
allegations, including the assertion that a coworker responsible
for the violation was acting in his capacity as a union steward,
and contends that Nelson failed to exhaust his internal union
remedies prior to filing a charge with the Board.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Nevada limited liability company, with an
office and place of business in Washington, D.C., has been
engaged in the business of providing security guard services to
various private and governmental buildings in Washington,
D.C., where it annually performs services valued in excess of
$50,000 in states other than Nevada and the District of Colum-
bia. The Union admits, and I find, that the Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
On May 1, the Company2 assumed the NASA contract from
the prior employer, Sectek, Inc. and adopted the predecessor’s
collective-bargaining agreement (CBA) with the Union pursu-
ant to an adoption agreement, which included a number of

1 All dates are in 2012 unless otherwise indicated.
2 The Company is a partnership between Quality Investigations, Inc.
and Coastal International Security, Inc. Coastal is a wholly-owned
subsidiary of Akal Security, Inc. (Jt. Stip., par. 1.)
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
enumerated changes.3 As the issues in the case revolve around
alleged employee misconduct, the pertinent CBA provision is
article 12.3:
If the contracting agency, or other government agency, directs
that a specific employee be removed from the contract or oth-
erwise disciplined, any such action directed may be undertak-
en by the Company and shall not be subject to the grievance
or arbitration procedures of Article 13 of this Agreement. In
the event that the contracting agency or other government
agency expressly directs the removal or discipline of a con-
tract employee, the Company agrees to cooperate with the
Union by providing it with available information concerning
the incident within five (5) calendar days of such direction by
the contracting agency or other governmental agency. It is ex-
pressly understood that such government action does not cre-
ate an obligation on the Company to relocate or reassign em-
ployee to any other contract.4
Similarly, the Company’s Employee Handbook states that
“[a]n employee is subject to immediate discharge if [the Com-
pany] is directed by the government to remove an employee
from a government contract or for” any one of several listed
offenses, including “[e]ngaging in harassment of any sort or
discrimination toward the client, other employees or visitors.”5
Moreover, employees “[s]hall report all unusual activities, no
matter how small, to a supervisor” and “[s]hall fully cooperate
in any Company or client initiated investigation.”6 Additional
rules require employees to “[r]efrain from activity that would
adversely affect the reputation of [the Company] or our cus-
tomers . . . [r]eport serious violations of prescribed rules, regu-
lations and violations of law to appropriate management offi-
cials . . . [r]effuse, unnecessarily delay, or fail to carry out a
proper order of a supervisor or other appropriate officials” . . .
[e]ngage in any activity that adversely affects the confidence of
the public and the integrity of [the Company] and its clients.”7
The Union operates pursuant to a Constitution and By-
Laws,8 They state, in article VI, Section 13 that the Union is
authorized to act as a member’s exclusive agent in addressing
problems with the employer:
The [Union) to which a member belongs are by him/her ir-
revocably designated, authorized, and empowered . . . exclu-
sively to act as his/her agent to represent and bind him/her in
the presentation, prosecution, adjustment and settlement of all
grievances, complaints or disputes of any kind or character
against the employer, as fully and to all intents and purposes
as he/she might or could do if personally present.9
The Constitution and By-Laws also provides relief for mem-
bers alleging harm by another member in violation of its provi-
sions. Article XXI states, in pertinent part:

3 Jt. Exh. 2–3.
4 Jt. Exh. 2 at 14.
5 GC Exh. 4 at 15–16
6 R. Exh. 1.
7 R. Exh. 2.
8 The Constitution and Bylaws are one document. (Jt. Exh. 19.)
9 Id. at 5.
Section 1. A charge by a member or members in good stand-
ing that a member or members have violated the Constitution
and By-Laws of a Local Union, or engaged in conduct unbe-
coming a member of the Union, must be specifically set forth
in writing and signed by the member or members making
such charges. The charges must state the exact nature of the
alleged offense or offenses and, if possible, the period of time
during which the offense or offenses allegedly took place. . . .
Conduct unbecoming a Union member may include disaffilia-
tion or decertification proceedings or the instigation thereof.
Section 2. Charges must be submitted to the Recording Secre-
tary of the Local Union within sixty (60) days of the time the
complainant becomes aware of the alleged offense . . . .
Section 3. Upon charges being submitted, it is mandatory that
a trial be held, unless the charges are withdrawn by the accus-
er or unless dismissed by the Executive Board of the Local
Union because found to be deficient in form or content or not
timely filed under Section 2 of this Article. . . .
Section 9. An officer of a Unit of a Local Union, if charged
with being derelict in performing his/her duties as a Unit Of-
ficer, shall be tried by a Trial Committee selected by the
members of the Union in accordance with the provision of
this Article, provided, however, that the only penalty that can
be meted out to such officer shall be the loss of office in the
Unit. The decision of the Trial Committee must be approved
by a two-thirds (2/3) vote of such unit members present at the
meeting, provided however, if the two-thirds (2/3) vote of
such unit membership should desire a penalty other than that
specified above, the matter shall be referred to the Local Un-
ion in accordance with the trial procedure outlined in this Ar-
ticle.10
During the period from September 1 through December 21,
Michael Brunson was a security guard and union steward at the
NASA headquarters facility. His duties included: (1) represent-
ing employees in disciplinary interviews; (2) investigating and
presenting grievances; (3) transmitting such information and
messages to and from the Union; and (4) bringing grievances to
the Company’s attention.11
Nelson, the charging party, was a security guard at the same
facility. During the period of September through November,
Nelson played a prominent role campaigning on behalf of a
rival organization seeking to replace the Union as labor repre-
sentative for company employees. He also engaged in numer-
ous discussions with Brunson in which he criticized the Union
and advocated for the rival union. Nelson was particularly dis-
turbed about NASA’s role in the termination of a coworker. On
at least one prior occasion, Brunson warned Nelson that such
criticism could get him in trouble if his remarks were reported
to management.12

10 Id. at 37, 39.
11 Jt. Exh. 2, art. 3.1(B).
12 Nelson’s roles in deauthorization and/or decertification of the Un-
ion and his frequent discussions with Brunson in which he criticized
Brunson, the Union and NASA officials, and expressed support for a
another labor organization, are not disputed. Given the circumstances,
SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) LOCAL 444 433
On November 10, Nelson completed his shift and was off-
duty when he engaged in another conversation with Brunson.
During the conversation, Nelson criticized the Union for per-
mitting NASA to mistreat the Company’s security guards and
NASA headquarters security chief Paul Raudenbush to use
video surveillance to monitor them. Brunson asserted that Nel-
son’s efforts to decertify the Union would cost employees a
raise. He also disagreed with Nelson’s assessment about NASA
security officials, insisting they served the interests of the
Company’s security guards. Referring to Raudenbush, his
deputy, Joseph Costanza, and branch chief Jolene Meidinger,
Nelson replied, “fuck Joe, fuck Jolene, and fuck Paul, they’re
going to respect us” and that he “did not give a fuck” about
them. Brunson warned Nelson that such comments could get
back to them and the conversation ended shortly thereafter. The
conversation was loud enough to be heard by several other
security guards stationed nearby, including Captain Jesse Rager
and officers Charles Stevenson and Sean Lafferty. There was
no shouting, yelling or arguing.13
On November 13, Nelson reported to work and was immedi-
ately told by Rager that Brunson reported his November 10
remarks to Raudenbush and that the latter wanted to speak with
him. At the end of his shift early the following morning, Nelson
went to speak with Raudenbush. Prior to entering the meeting,
Nelson activated his cellular telephone’s voice recorder.
Raudenbush did virtually all of the talking during the meet-
ing. Without mentioning specific instances, he told Nelson to
stop complaining and lowering morale. Raudenbush added that
he was entitled to monitor the Company’s security guards
through surveillance cameras and asked if Nelson was record-
ing their conversation. Nelson denied that he was recording the
conversation, but Raudenbush made him remove his sweater to
make sure. Raudenbush concluded the meeting by informing
Nelson that he should just do his job. He added that he would
not seek to have Nelson disciplined or removed from the
NASA worksite.14
Unbeknownst to Raudenbush, that same morning, on No-
vember 14, Brunson kept the issue alive by expressing his con-
cern to Costanza as to what Nelson said on November 10.
Brunson told Costanza that Nelson yelled loudly, inappropriate-
ly and “in a fashion that was concerning.” Brunson did not
mention, however, that Nelson was off-duty and unarmed when
he made the remarks.15

Brunson clearly considered Nelson to be hostile to the Union. (Tr. 23–
46, 120–126, 132–134, 149–151, 166–167, 245–246.)
13 Brunson confirmed testimony by Nelson that they were neither
yelling nor arguing on November 10, and the discussion was typical of
several that they had in the past and was not worth reporting to man-
agement. (Tr. 49–56, 151–156.) Rager, whom I found credible, testified
that they were speaking loudly, but he did not hear cursing or threaten-
ing statements. (Tr. 244–247.) In addition, the incident reports filed by
Rager, Brunson, and Stevenson on November 15 confirm the absence
of yelling and arguing, and the nonthreatening nature of the conversa-
tion. (GC Exh. 4 at 10–12.)
14 It is evident from the testimony of Nelson and Raudenbush that
the latter was not yet aware that Nelson had taken his name in vein on
November 10. (Tr. 62, 221–222.)
15 Brunson testified that he provided details to Costanza after the lat-
ter asked Brunson if he had heard what happened to Nelson. However,
On November 15, Costanza followed-up on Brunson’s in-
formation by an email sent to Company management, including
Rager, Project Manager Douglas Nelson and Vice President
Nate White, requesting immediate suspension of Nelson’s ac-
cess to the facility, pending investigation of the November 10
incident. It stated in pertinent part:
I was informed of a very serious matter yesterday and after
a bit of thought I am requesting the immediate suspension of
access pending further investigation. Officer Brunsen in-
formed me yesterday that Officer Cordaryl Nelson was heard
using expletives and shouting in the West lobby area while on
shift Saturday November 10, 2012. Furthermore, officer
Nelson yelled out F ___, F ___ and F ___ Jolene,16 they need
to respect me? The very nature of this type of behavior is
threatening and cannot be allowed on an armed contract. Of-
ficer Nelson is hereby barred from the facility until which
time statements are obtained from all parties that were on shift
and from Officer Brunson. Please collect the statements and
provide them to the CCS review. If this investigation is in-
conclusive access will be reinstated for this individual. Ob-
viously a great deal of professionalism is required during this
type of investigation so please ensure statements are col-
lected in private and that information collected is not
shared with personnel without a need to know. Thanks
very much and have a great day.17
Later that afternoon, Raudenbush, sent an email to Rager in-
forming him that Nelson was barred from NASA headquarters
until the investigation into his behavior was completed:
It is now my understanding that you were informed by the
53 HR, Barbara Gonzalez, that Officer Nelson spoke to her
and claimed that his attorney instructed him that he should
come to work tonight. As Chief of Security at NASA HQ, I
have barred him from the NASA Headquarters building
until the investigation into his disruptive and threatening
behavior is completed. It does not matter what any attor-
ney advises him as I am the final authority on who has ac-
cess to NASA Headquarters. If he comes to HQ tonight
you are to contact FPS and have him removed from the
building. You shall call me if FPS is needed and I will speak
to them.18
The Company notified Nelson later that day that it was di-
rected by NASA headquarters to remove him from the contract
until further notice due to alleged misconduct at that facility.
Nelson was informed that due to the removal, he was being
placed on unpaid leave status and the project manager or hu-

Brunson ‘s credibility was impeached based on numerous inconsisten-
cies between his testimony, incident report and Board affidavit. (Tr.
156–157, 169–170; GC Exh. 4 at 10.) Costanza, on the other hand,
provided credible testimony that Brunson initiated the conversation and
provided an exaggerated description of Nelson’s conduct on November
10. (Tr. 194–199, 207–208; Jt. Exh. 4.)
16 Blank lines were contained in the original.
17 Jt. Exh. 4.
18 Jt. Exh. 5.
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
man resources department would be in contact with him with
the final determination into the matter.19
On November 16, Nelson emailed Union President Willie
Jones and the International Union’s Executive Director, Joseph
McCray, to request union representation in a case against the
United States and the Company for violating the Whistleblower
Protection Act and False Claims Act.20
On November 20, Nelson sent a followup email to Jones re-
questing the Union assist him in a case against NASA and the
Company. Jones replied by email less than an hour later and
informed Nelson that he tried to contact the human resources
department to get Nelson’s writeup but had not received a re-
sponse. Jones informed Nelson that he would file a grievance
on Nelson’s behalf the following day. In the email, Jones cop-
ied McCray, Brunson, and the International Union’s secre-
tary.21
Later that night, Nelson responded to Jones’ email and cop-
ied McCray and Brunson. In his email, Nelson informed Jones,
McCray, and Brunson that he had a “very confidential record-
ing” that he wanted to share with them and forwarded the re-
cording that he made of his November 14 conversation with
Raudenbush. He also provided the applicable statutory provi-
sion as “DC [Title] 23 chapter 5 subpart 3 wiretapping law.”22
Prior to starting his shift at 6 a.m. the following morning,
Brunson informed Raudenbush about the tape recording. Raud-
enbush directed Brunson to send it to him. As soon as he started
his shift and was able to access a computer, Brunson forwarded
Nelson’s email and tape recording.23 Shortly thereafter,
Brunson sent an email to Nelson informing him that he would
file a grievance on Nelson’s behalf that day. Brunson copied
Jones and McCray on the email.24 A few minutes later, Jones
sent an email to Nelson requesting that he provide a statement
of what happened during his meeting with Raudenbush. Nelson
agreed to provide a copy of the statement as an email attach-
ment.25
On November 23, Nelson sent an email to Jones, Brunson,

19 Nelson refused to sign the document. (Jt. Exh. 6.)
20 Jt. Exh. 7(a).
21 Jt. Exh. 7(b).
22 Jones conceded that any evidence provided by a unit member to
the Union in the furtherance of a grievance should be kept confidential.
(Jt. Exh. 7(c); Tr. 282.).
23 Brunson was tentative and evasive in conceding that he sent the
tape recording to Raudenbush the following day. (Tr. 162–164; Jt. Exh.
8.) In subsequent testimony, Brunson said that he spoke to no one the
following morning, except for Raudenbush, who found out about the
tape recording from someone and directed Brunson to send it to him as
soon as possible. (Tr. 175–177.) That testimony is contradicted by
Raudenbush, who testified that he first learned about the recording
from Brunson or another officer that morning as he arrived at the facili-
ty. (Tr. 228–229.) Considering Raudenbush’s less than credible testi-
mony as to his role in Nelson’s termination, see fn. 32, infra, I find that
his spotty memory as to how he learned about the recording was an
attempt to insulate Brunson as his source of information. In any event,
Nelson’s confidential email was sent to three union officials, including
Brunson, so there is no doubt that one of them told Raudenbush about
the tape recording.
24 Jt. Exh. 9.
25 Jt. Exh. 10(a).
and McCray describing his version of what occurred during the
meeting with Raudenbush. In the email, Nelson stated that
Rager, while informing him that Raudenbush wanted to speak
with him, implied that Brunson told Raudenbush about the
recording. On November 26, Brunson replied to Nelson’s email
denying that he ever spoke to anyone about Nelson.26
Meanwhile, on November 23, Jones drafted a grievance on
Nelson’s behalf and gave it to Brunson to file at Step 2 of the
grievance procedure:
The Union disagrees with [the Company’s] decision to re-
move Mr. Cordarryl Nelson from NASA contract pending an
investigation. Contract Provision Violated:
Art. 12 Discharge and Discipline
Art. 12.1Just Cause
Art. 12.3Government Action
Relief Requested: The Union request that [the Company] re-
instate Mr. Nelson immediately and make him whole in ever-
way possible. Also the Union request that all documents used
by the company in making its decision to suspend Mr. Nelson
be forwarded to the Union office and a second step grievance
hearing be arranged in accordance with the CBA.27
On November 26, Jones sent an email to Douglas Nelson, at-
taching the grievance filed on behalf of the charging party and
requesting it be processed at the second step of the CBA.28
On December 4, White notified Jones that NASA barred
Nelson from the contract worksite.29 On December 7, Jones
sent Douglas Nelson an email formally withdrawing the charg-
ing party’s grievance because the Company was following
government instructions to remove him from the worksite. The
email is incorrectly dated November 7, but was actually sent on
December 7:
Please allow this email to serve as an official notification by
the Union in reference to grievance #112312-A that was filed
on behalf of Mr. Cordarryl Nelson on November 23, 2012.
Based on, Article (12) Sec. 12.3-Government Action of the
CBA which states “If the contracting agency, or government
agency, direct that a specific employee be remove from the
contract or otherwise disciplined, any such action directed
may be undertaken by the company and shall not be subject to
the grievance and arbitration procedures.
Therefore, the Union has no choice but to formally withdraw
Mr. Nelson grievance because the company was only follow-
ing the government instructions to remove him from the
work-site. If you have any questions, please do not hesitate to
contact me.30
On December 20, the Company notified Nelson that he was
removed from the contract site and terminated because it “lost
confidence in [his] ability to properly carry out [his] duties as
an Armed Security Officer and comply with all policies and

26 Jt. Exh. 10(b).
27 Jt. Exh. 11.
28 Jt. Exh. 12.
29 Jt. Exh. 13.
30 Jt. Exh. 14.
SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) LOCAL 444 435
procedures.” The internal Company documentation containing
the justification for the termination stated that the client,
NASA, requested the removal based on “unprofessional con-
duct and behavior; false and misleading statements; failure to
follow directives; loss of confidence.”31 This documentation, by
implication, referred to Nelson’s November 10 discussion with
Brunson and Nelson’s November 13 tape recording of his con-
versation with Raudenbush.32
Later that day and the next day, Nelson emailed union and
Company representatives urging them to submit a joint petition
to NASA explaining that there was no just cause to bar Nelson
from the worksite and asking NASA to lift the disciplinary
requirement. 33
On December 21, Nelson emailed Company manager Nate
White requesting to know the status of the Company’s investi-
gation. Later that day, White informed Nelson that the Compa-
ny sent the final results of the investigation to his home address
via FedEx delivery.34
Legal Analysis
The General Counsel alleges that the Union violated Section
8(b)(1)(A) and (2) of the Act by causing the Company to termi-
nate discipline and terminate Nelson because of his dissident
union activities. The Union concedes that Nelson openly and
actively opposed it, and sought to replace it as the company
employees’ labor representative. However, the Union insists
that its representative was not the cause of Nelson’s discipline
and termination because the latter’s misconduct was also re-
ported to the client by other employees.
Section 8(b) states, in pertinent part, that “[i]t shall be an un-
fair labor practice for a labor organization or its agents (1) to
restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 . . . [or]; (2) to cause or attempt to cause
an employer to discriminate against an employee in violation of
[section 8(a)(3)]. . . Accordingly, a union breaches its duty of
fair representation when its conduct toward a unit employee is
arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S.
171, 190 (1967); Carpenters Local 626, 310 NLRB 500
(1993); Miranda Fuel Co., 140 NLRB 181, 184–185 (1962),
enf. denied 326 F.2d 172 (2d Cir. 1963). Opposition to union
officers or policies are protected Section 7 activities. Sheet
Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867
(1985).
A derivative violation of Section 8)(b)(1)(A) also arises
where an 8(b)(2) violation has been proven. The reason is that

31 Jt. Exh. 15–16.
32 Raundenbush testified that he never recommended that Nelson be
disciplined for recording their conversation, even though he suspected
it at the time, because he lacked proof (Tr. 226–227.) In subsequent
testimony, however, Raudenbush conceded that, after receiving proof
of the tape recording, he told the Company’s project manager that
Nelson lied about recording their conversation and he would not toler-
ate a dishonest guard in his facility. (Tr. 230.) Moreover, the Compa-
ny’s December 18 justification for termination confirms that Raud-
enbush directed that Nelson be barred from the facility for “false and
misleading statements,” an obvious reference to the proof provided by
Brunson.
33 Jt. Exh. 17.
34 Jt. Exh. 18.
the union’s causation of an employee’s discharge necessarily
constitutes restraint and coercion of the worker’s exercise of his
Section 7 rights. Town & Country Supermarkets, 340 NLRB
1410, 1411 (2004); Postal Workers, 350 NLRB 219, 222
(2007). The 8(b)(2) portion of the claim is analyzed under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981). See Paperworkers Local 1048 (Jefferson Smurfit
Corp.), 323 NLRB 1042, 1044 (1997). As the Board articulated
in Ironworkers Local 340 (Consumers Energy Co.), 347 NLRB
578, 579 (2006):
To establish a prima facie case under Wright Line, the Gen-
eral Counsel must establish that [the employee’s] . . . protect-
ed concerted activity was a substantial or motivating factor in
the Respondent’s adverse employment actions. . . . If the
General Counsel makes the required initial showing, the bur-
den then shifts to the Respondent to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of [the employee’s] protected activity.
A preponderance of the evidence established that Nelson was
actively involved as a dissident union member and Brunson, his
union steward, and Jones, the union president, were well aware
of his advocacy on behalf of a rival labor organization and his
criticism of the client’s security managers. Nelson engaged in
several prior discussions with them over his support for the
rival union and criticism of NASA officials. During those con-
versations, Brunson evidenced animus by expressing his disap-
pointment and criticism of Nelson for supporting a rival. He
also defended NASA officials and warned Nelson to refrain
from such criticism because his comments could get back to
them.
Brunson’s voluntary report to Costanza, a NASA official,
about Nelson’s behavior in the NASA headquarters lobby on
November 10 smacked of discriminatory motivation. See
Farmer Bros. Co., 303 NLRB 638, 649 (1991). Brunson con-
ceded at trial that Nelson’s behavior on November 10 was not
threatening, concerning or worth reporting to supervisors, much
less the client. Brunson and Nelson were employed by the
Company, not NASA, yet he bypassed his supervisors and
managers and chose to report the encounter to Costanza, the
client’s representative, a few days later. Aside from accurately
reciting Nelson’s profanity toward NASA security supervisors,
he provided an exaggerated description of Nelson as shouting
and threatening. Brunson also neglected to share that Nelson
was off-duty and unarmed at the time, leading Costanza to as-
sume, incorrectly, that Nelson was on-duty and armed. By his
actions, Brunson knew that Nelson would be removed from the
worksite and suffer adverse employment action. He said as
much when he warned Nelson of the consequences for criticiz-
ing NASA security officials regarding unit employees’ terms
and conditions of employment. See Paperworkers Local 1048,
323 NLRB 1042, 1044 (1997) (union violated the Act when its
treasurer reported critical comments of dissident member to
management and exaggerated the level of outrage amongst his
workers).
Similarly, Brunson’s forwarded Nelson’s tape recording of
his conversation with Raudenbush soon after receiving it, even
though Nelson gave it to Brunson in confidence. While it is
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conceivable that the Union might have provided the recording
to Raudenbush at a later date in support of a reinstatement ef-
fort, there was no union action on Nelson’s behalf at that point;
nor was there any evidence that NASA or company officials
were aware of the tape recording and directed Brunson to turn it
over. The only plausible inference was that Brunson delivered
the tape recording to Raudenbush in order to bolster the case
for barring Nelson from the worksite and ensuring his termina-
tion.
Under the circumstances, Brunson’s voluntary disclosures to
the client on November 10 and 14 were calculated to generate
disciplinary action against Nelson. By doing so, the Union
breached its fiduciary responsibility to represent the interests of
Nelson, a bargaining unit employee. Stagehands Referral Ser-
vice, LLC, 347 NLRB 1167, 1170 (2006), enfd. 315 Fed. Appx.
318 (2d Cir. 2009). Moreover, the element of causation neces-
sary to establish a prima case violation of Section 8(b)(2) is met
by the aforementioned disclosures. See Town & Country Su-
permarkets, 340 NLRB at 1411; Paperworkers Local 1048, 323
NLRB at 1044.
The General Counsel having established a prima facie case,
the burden of persuasion shifted to the Union to prove that
Brunson would have reported Nelson’s conduct to Raudenbush
even in the absence of Nelson’s dissident union activities. See
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). The Union
failed to meet its burden. First, the credible evidence reveals
that Brunson did not, in fact, consider Nelson to have engaged
in misconduct; nor was he directed to produce the tape record-
ing by anyone.35 Secondly, there is no evidence of a Company
or NASA rule or policy requiring company employees to report
to NASA profanity by off-duty coworkers or divulge tape re-
cordings provided by coworkers. Thirdly, and more important-
ly, the Union provided no explanation why Brunson would
sidestep his employer, essentially keeping it in the dark about
alleged misconduct by a coworker, and report the November 10
incident and divulge the November 14 tape recording directly
to the client.
The Union’s alternative defense is that Brunson was, at most,
acting in his individual capacity and not as a union steward
when he forwarded damaging information about Nelson to
NASA officials. The Board regularly finds elected or appointed
union officials to be agents of that organization. See Electrical
Workers IBEW Local 453 (National Electrical), 258 NLRB
1427, 1428 (1981); Penn Yan Express, 274 NLRB 449 (1985).
Although the holding of elective office does not mandate a
finding of agency per se, it is persuasive and substantial evi-
dence that will be decisive in the absence of compelling contra-
ry evidence. Mine Workers Local 1058 (Beth Energy), 299
NLRB 389, 389–390 (1990); Plumbers, Local 83, 238 NLRB
499 (1978). I find no compelling contrary evidence here.
The evidence establishes that Brunson was motivated by his

35 San Diego Carpenters (Hopeman Bros.), 272 NLRB 584 (1984),
relied upon by the Union, is inapplicable. In that case, like many others,
the Board held that a union commits an unfair labor practice when it
fines a member for reporting a work rule infraction by a coworker to
an employer when that member is required by the employer to make
such a report. In this instance, Brunson faced no such dilemma.
interests in defending the Union’s status as unit employees’
labor representative at NASA headquarters, not in his individu-
al capacity. Brunson voluntarily reported details of his Novem-
ber 10 conversation with Nelson and divulged his tape record-
ing to NASA officials in order to precipitate adverse employ-
ment action. Contrary to what Brunson reported to Costanza,
his testimony and other credible evidence did not reveal any
violation by Nelson of Company or NASA rules or policies;
and, without being asked or directed by anyone, Brunson vol-
untarily sent Raudenbush a copy of Nelson’s tape recording. In
neither instance was Brunson’s employment status imperiled if
he refrained from passing on information concerning Nelson.
Finally, although not briefed by the parties, the Union assert-
ed as an affirmative defense Nelson’s failure to exhaust internal
union remedies prior to filing an unfair labor practice charge.
The Board has long held that, in appropriate cases, it should
defer consideration of certain cases alleging violations of the
Act under the rationale of Collyer Insulated Wire, A Gulf &
Western Systems Co., 192 NLRB 837 (1971). The most com-
mon situation is where a contractual arbitration provision is
found to both reflect the intentions of the parties and provide an
appropriate forum for resolution of the dispute.
Deferral is not appropriate, however, in cases where the in-
terests of the aggrieved employee are in apparent conflict with
the interests of the parties to the contract. Electrical Workers
Local 675 (S & M Electric Co.), 223 NLRB 1499 (1976). Ac-
cordingly, the Board does not apply deferral to duty of fair
representation charges or complaints. See, e.g., Electrical
Workers IBEW Local 581, 287 NLRB 940, 948 fn. 25 (1987);
Teamsters Local 519 (Rust Engineering), 276 NLRB 898, 907
(1985); Musicians Local 47, 255 NLRB 386, 390–391 (1981);
Pipe Fitters Local 392, 252 NLRB 417 fn. 1 (1980).
In this case, Nelson could have filed charges against Brunson
seeking to have him expelled from the Union and/or fined pur-
suant to the union constitution and bylaws. Such an avenue,
under the circumstances, would have been futile and insuffi-
cient. Had Nelson resorted to the Union’s procedures, he would
have likely encountered a slow and hostile path forward, given
his stated objective of deathorizing or decertifying the Union as
unit employees’ labor representative. In any event, having
Brunson disciplined and/or fined by the Union would not have
provided an effective remedy, since it would not have resulted
in Nelson’s reinstatement by the Company. Under the circum-
stances, deferral to the Union’s processes would be inappropri-
ate.
Based on the foregoing, the Union attempted to cause or
caused Nelson’s discipline and termination by reporting his
protected concerted activity to the Company’s client on No-
vember 14 and divulging Nelson’s confidential tape recording
to the client on November 21 in violation of Section 8(b)(2).
Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323
NLRB 1042 (1997), enfd. 865 F.2d 251 (3d Cir. 1998). The
Union’s conduct also constitutes a derivative violation of Sec-
tion 8(b)(1)(A).
CONCLUSIONS OF LAW
1. The Respondent, International Union, Security, Police and
Fire Professionals of America (SPFPA) Local 444 (the Union),
SECURITY, POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA) LOCAL 444 437
is a labor organization within the meaning of Section 2(5) of
the Act.
2. Michael Brunson was at all material times an agent of the
Union.
3. By reporting Nelson’s protected concerted activity to the
Company’s client on November 14, 2012, and divulging Nel-
son’s confidential tape recording of his conversation with the
Company’s client on November 21, 2012, the Union attempted
to cause and caused the Company to discipline and discharge
Nelson in violation of Section 8(b)(2) and (b)(1)(A) of the Act.
4. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Union has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
The Union shall make Nelson whole for any loss of earnings
and benefits suffered as a result of his discipline and discharge.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). The Union shall file a report with the Social
Security Administration allocating backpay to the appropriate
calendar quarters. The Union shall also compensate Nelson for
the adverse tax consequences, if any, of receiving one or more
lump-sum backpay awards covering periods longer than 1 year,
Latino Express, Inc., 359 NLRB 518 (2012).
Additionally, the Union will be required to request that the
Company, Security Support Services, LLC, remove all records
of Nelson’s termination and suspension from his personnel file.
[Recommended Order omitted from publication.]