Lance Investigation Service

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1109 (N.L.R.B. 2003)

LANCE INVESTIGATION SERVICE 1109
Lance Investigation Service, Inc. and Robert Smith.
Case 2–CA–33579
April 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On February 12, 2002, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, a cross-
exception, and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
We reverse the judge’s finding that the Respondent
discharged employee Robert Smith in violation of Sec-
tion 8(a)(1). We agree with the Respondent that Smith
was not discharged, but rather abandoned his employ-
ment. Accordingly, we shall dismiss the complaint in its
entirety.
I. RELEVANT FACTS
Smith was employed by the Respondent as a security
guard at the Diego Beekman House in the Bronx, New
York. It is undisputed that he was entitled to vacation
pay under the collective-bargaining agreement governing
his employment.
In November 2000, Smith first notified the Respondent
that he sought vacation pay for the week of December
17, 2000. Before and during that vacation week, Smith
inquired about his vacation pay. When he did not re-
ceive it on the first payday in January 2001,2 he made
several requests for it to his supervisor. In addition, on
several occasions in early to mid-January, Smith called
the office of Keith Johnson, the Respondent’s vice presi-
dent of finance and operations in charge of payroll.
Johnson did not return those calls.
On January 24, Smith left a message for Johnson with
a secretary, asking, “What do I have to do to get my va-
cation pay, get a lawyer?” Johnson then returned

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 All dates hereafter are in 2001.
Smith’s call. Johnson informed Smith that his vacation
check was at the office and he could pick it up. Johnson
also stated to Smith, “[Y]ou’re that wise guy who threat-
ened me with a lawyer,” and “we’ll see how long you’re
working for me at that site, wise guy.”3
When Smith went to the office after work that day,
Johnson handed Smith his vacation check. Johnson said
that he wanted to speak to Smith. Johnson was attending
to other business at the time and asked Smith to sit down
and wait. After just a few minutes, Smith complained
that he was on his own time and left without saying any-
thing to the secretary in the office.
The next day, January 25, about an hour after Smith
began work, Smith’s supervisor, Roy Headen, told him
to come to the office. When Smith got there, Headen
told Smith to punch out and go home; he was “off the
schedule.” When Smith asked why, Headen responded
that Johnson had taken Smith off the schedule. Smith
then asked Headen what Headen would do if he were
Smith. Headen responded, “If I was you, I’d go see
Keith Johnson.” Smith never did so, and he never re-
turned to work. Instead, Smith telephoned his union rep-
resentative and, the next day, sent a “notification of an
official grievance” to both his union representative and to
the Board’s Regional Office. The “grievance” com-
plained about Smith’s removal from employment.
II. DISCUSSION
The judge found that Smith did not abandon his em-
ployment, but was terminated by the Respondent for en-
gaging in the protected concerted activity of invoking his
right to vacation pay under the collective-bargaining
agreement. The judge found that the Respondent’s ac-
tion in removing Smith from the schedule, in the context
of the conversation Smith had with Johnson the previous
day, would reasonably have led Smith to believe that he
had been terminated. In addition, the judge reasoned that
any ambiguity in Smith’s status should be resolved
against the Respondent.
In its exceptions, the Respondent contends, inter alia,
that its conduct would not have reasonably led Smith to
believe that he had been discharged, and that the Re-
spondent should not be held responsible for Smith’s fail-
ure to meet with Johnson to clarify Smith’s employment
status. We agree with the Respondent and reverse the
judge.
“The test for determining whether [an employer’s]
statements constitute an unlawful discharge depends on
whether they would reasonably lead the employees to
believe that they had been discharged.” Ridgeway Truck-
3 The General Counsel did not allege that Johnson’s statement vio-
lated the Act.
338 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
ing Co., 243 NLRB 1048 (1979), enfd. 622 F.2d 1222
(5th Cir. 1980) (quotations and citation omitted). The
Board has held that the “fact of discharge does not de-
pend on the use of formal words of firing. . . . It is suffi-
cient if the words or action of the employer ‘would logi-
cally lead a prudent person to believe his [her] tenure has
been terminated.’ NLRB v. Trumbull Asphalt Co., 327
F.2d 841, 843 (8th Cir. 1964).” North American Dis-
mantling Corp., 331 NLRB 1557 (2000), enfd. in part 35
Fed.Appx. 132 (6th Cir. 2002).
Applying this test here, we disagree with the judge and
find that the Respondent’s conduct would not logically
lead a reasonable person to conclude that he had been
discharged. Even when viewed from the employee’s
perspective, the most that can be inferred from the words
and conduct of Johnson and Headen was that Smith was
being taken off his current site (at Diego Beekman
House) and that Johnson wanted to discuss this matter
with him.
More specifically, Johnson’s January 24 statement
(that Smith would see how long he was working for
Johnson “at that site”) was, at most, a threat to remove
Smith from his post at Diego Beekman House. Clearly,
it did not express an intention to terminate his employ-
ment. In addition, when Johnson told Smith on January
24 that Johnson wanted to talk to Smith, there is no indi-
cation that Johnson wanted to apprise Smith that disci-
pline was being imposed. Johnson simply said that he
wanted to talk to Smith. Further, even assuming ar-
guendo that Johnson had decided upon discipline and
intended to inform Smith thereof, there is nothing to in-
dicate that the discipline was discharge. At most, it was
the effectuation of the threat to remove Smith from the
site. Similarly, Headen’s remark was, at most, a carrying
out of Johnson’s decision. This action, and the remark
apprising Smith of the action, did not mention discharge,
termination, or any other permanent severance from em-
ployment.4
The Respondent’s subsequent conduct on January 25 is
completely consistent with the above. The Respondent’s
custom is that employees who receive discipline less
severe than discharge are removed from the schedule and
are expected to meet with Johnson to discuss their disci-
pline before being returned to the schedule. Thus, John-
son’s removal of Smith from the schedule, Headen’s
informing Smith that he was off the schedule, and
Headen’s invitation to Smith to go see Johnson were all
consistent with discipline short of discharge. Likewise,
Headen’s statement to Smith to go home was perfectly

4 We agree that the word “discharge” is not necessary to denote a
permanent termination of employment.
consistent with discipline short of discharge. See, e.g.,
Interlink Cable Systems, 285 NLRB 304, 305, 307
(1987) (finding that in particular circumstances, em-
ployer statement to employees that they would have to
punch out and go home would not have reasonably led
employees to believe that they had been terminated).
Further, even if there was an ambiguity as to whether
Smith was discharged, Smith could have easily cleared
the matter up. The Respondent twice offered Smith the
opportunity to clarify his status, but he failed to do so.
Rather than meet with Johnson as requested on January
24, Smith left after waiting only a few minutes. Simi-
larly, Smith never complied with Headen’s January 25
invitation to meet with Johnson. Instead, Smith left,
never to return. Smith clearly could have availed himself
of either opportunity to clarify his status. He failed to do
so.
This finding is supported by Pink Supply Corp., 249
NLRB 674 (1980). In that case, the employer told em-
ployees who were engaged in a concerted refusal to work
that it would have to act as if they were quitting, but the
employees’ spokesman denied that they were quitting.
The employer invited the spokesman to clarify the em-
ployees’ status by asking, “Well, what do you call it?
What am I supposed to do?” The spokesman did not
respond to these questions, but stated that the employees
would come in to clean out their desks. The Board found
that the employer did not discharge the employees in
violation of Section 8(a)(1). The Board said:

This is not a case where an ambiguity was cre-
ated by Respondent’s wrongdoing and where, con-
sequently, the burden of the results of that ambiguity
must fall on it. While the whole situation may have
put the employees in some doubt as to their status,
we see no basis in the credited evidence for charging
Respondent with any heavier responsibility for the
uncertainty than is attributable to the employees
themselves. . . . The situation certainly did not make
further inquiries into Respondent’s intentions futile
. . . . At worst it created an uncertainty that each
party was equally well equipped to rectify. In these
circumstances we agree with the Administrative Law
Judge that the General Counsel has not met his bur-
den of proof. Id.

Similarly, as noted above, the Respondent twice in-
vited Smith to meet with Johnson to clarify Smith’s em-
ployment status, but Smith did not do so. The ambiguity
in Smith’s employment status existed because he failed
to act on the Respondent’s invitations. Thus, as in Pink
Supply Corp., “we see no basis in the credited evidence
for charging Respondent with any heavier responsibility
LANCE INVESTIGATION SERVICE 1111
for the uncertainty than is attributable to the [employee]
[himself].” Id.
Our dissenting colleague contends that we should re-
solve any ambiguity against the Respondent, relying on
Flat Dog Productions, Inc., 331 NLRB 1571 (2000),
enfd. 34 Fed.Appx. 548 (9th Cir. 2002). In that case,
however, the ambiguity in the employees’ status was
caused by the fact that the employer made two inconsis-
tent statements, and did not offer employees a chance to
clear up the matter. That is, the employer explicitly told
the employees that they had been fired and referred to
them as “former employees.” At the same time, the em-
ployer was telling the employees the contrary, i.e., that
they could return to work. The employer gave no oppor-
tunity to clarify the inconsistency.
The dissent’s argument (that Smith was discharged) is
based in part on the fact that the Respondent ordinarily
accompanies discipline less severe than discharge with a
written notification to the employee. However, the ob-
verse (that the absence of such a notification to Smith
means that he was discharged) is not a logical sequitur.
Indeed, it is counterintuitive to believe that there is a
lesser communication for the greater sanction. In any
event, there is no evidence addressing the procedures
used when an employee is discharged, so we do not
know what, if any, communication the Respondent used
in discharge situations. Thus, the dissent’s contention is
without merit.
Hale Mfg. Co., 228 NLRB 10 (1977), enfd. 570 F.2d
705 (8th Cir. 1978); and TPA, Inc., 337 NLRB 282 fn. 6
(2001), are clearly distinguishable. In those cases, the
employer had the opportunity to clarify its own ambigu-
ity, and failed to do so. By contrast, in the instant case,
the employee had the opportunity to clarify an alleged
ambiguity and he failed to do so.
Accordingly, we find that the General Counsel has not
met his burden of proving that the Respondent termi-
nated Smith’s employment in violation of Section 8(a)(1)
of the Act.
ORDER
The complaint is dismissed.

MEMBER WALSH, dissenting.
Contrary to my colleagues, I agree with the judge that
the Respondent violated Section 8(a)(1) of the Act by
terminating employee Robert Smith because he sought
vacation pay under the collective-bargaining agreement.
At the very least, the Respondent’s conduct created a
climate of ambiguity and confusion concerning Smith’s
status. Under established Board precedent, the Respon-
dent had the burden to remove that ambiguity and clarify
Smith’s status, and it plainly failed to do so.
The facts are more fully set forth by the majority, but
briefly are as follows. On several occasions in early to
mid-January, Smith called the office of Keith Johnson,
the Respondent’s vice president of finance and opera-
tions in charge of payroll, to obtain vacation pay to
which Smith was entitled under the collective-bargaining
agreement governing employees’ terms and conditions of
employment. Johnson did not return those calls, so on
January 24, Smith left a message for Johnson with a sec-
retary, asking, “What do I have to do to get my vacation
pay, get a lawyer?” Johnson then returned Smith’s call
and stated to Smith, “[Y]ou’re that wise guy who threat-
ened me with a lawyer,” and “we’ll see how long you’re
working for me at that site, wise guy.”
After work that day, Smith went to pick up his vaca-
tion check. When Johnson saw Smith, Johnson said that
he wanted to speak to Smith. Smith agreed, but Johnson
told Smith to sit down and wait in Johnson’s office.
Johnson then left to take care of other work. Smith com-
plained that he was on his own time, waited several min-
utes, but left when Johnson still did not return.
The next day, January 25, about an hour after Smith
began work, Smith’s supervisor, Roy Headen, told him
to come to the office. When Smith got there, Headen
told Smith to punch out and go home; he was “off the
schedule.” When Smith asked why, Headen responded
that Johnson took Smith off the schedule.1 Smith then
asked Headen what Headen would do. Headen re-
sponded, “If I was you, I’d go see Keith Johnson.”
As correctly noted by my colleagues, in determining
whether an employee has been discharged, the Board has
held that the “fact of discharge does not depend on the
use of formal words of firing. . . . It is sufficient if the
words or action of the employer ‘would logically lead a
prudent person to believe his [her] tenure has been ter-
minated.’ NLRB v. Trumbull Asphalt Co., 327 F.2d 841,
843 (8th Cir. 1964).” North American Dismantling
Corp., 331 NLRB 1557 (2000), enfd. in part 35
Fed.Appx. 132 (6th Cir. 2002). In Flat Dog Productions,
Inc., 331 NLRB 1571 (2000), enfd. 34 Fed.Appx. 548
(9th Cir. 2002), the Board, quoting Brunswick Hospital
Center, Inc., 265 NLRB 803, 810 (1982) (citations omit-
ted), stated:

In determining whether or not [an employee] has
been discharged, the events must be viewed through
the [employee’s] eyes and not as the employer
would have viewed them. The test to be used is
whether the acts reasonably led the [employees] to
believe that they were discharged. If those acts cre-

1 Headen testified that Johnson never told Headen why Smith was
removed from the schedule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
ated a climate of ambiguity and confusion which
reasonably caused [employees] to believe they were
discharged or, at the very least, that their employ-
ment status was questionable because of their [pro-
tected] activity, the burden of the results of that am-
biguity must fall on the employer.

Applying this test here, I agree with the judge that the
Respondent’s conduct would have reasonably led Smith
to conclude that he had been discharged. One day after
Smith was threatened by Johnson with loss of employ-
ment,2 Smith was involuntarily removed from the sched-
ule without pay. Smith was told that was it at the behest
of Johnson, and Smith was told to go home. Contrary to
my colleagues, I would find that this conduct of the Re-
spondent, when viewed through Smith’s eyes, would
have reasonably led Smith to believe that he had been
terminated.
In addition, Headen did not orally clarify Smith’s em-
ployment status or the reason for his removal from the
schedule. Nor did the Respondent provide Smith with
any written disciplinary notice, despite evidence showing
that employees receiving discipline less severe than dis-
charge customarily receive a written disciplinary notice
when they are removed from the schedule.3 This sug-
gests that the Respondent did not intend merely to cor-
rect Smith’s behavior, but rather intended to discharge
him. Further, because Smith had never been disciplined
before, it was reasonable for him to interpret the Respon-
dent’s unexplained removal of him from the schedule as
a discharge.4
This finding is supported by Hale Mfg. Co., 228
NLRB 10, 11–13 (1977), enfd. 570 F.2d 705 (8th Cir.
1978). In that case, a dispute arose between employees
and management over terms and conditions of employ-
ment. A supervisor became angry and stated to the em-
ployees, “[Y]ou are all going to have to go home.” The
respondent did not clarify the employees’ status when
provided the opportunity. The Board found, with court
approval, that the employees reasonably believed that

2 My colleagues’ contention that Johnson’s statements did not
amount to a threat of discharge is unpersuasive. Johnson twice referred
to Smith as a “wise guy,” accused him of “threaten[ing] [Johnson] with
a lawyer,” and ominously stated, “We’ll see how long you’re working
for me at that site.” My colleagues place undue emphasis on the words
“at that site” and overlook the central thrust of Johnson’s remarks,
which unmistakably conveyed the message that Smith’s days with the
Respondent were numbered.
3 There is no evidence that any other employee was deprived of a
disciplinary “write up” when disciplined short of discharge by the
Respondent.
4 See TPA, Inc., 337 NLRB 282, 283 fn. 6 (2001) (finding that em-
ployer’s silence and inaction when provided the opportunity to clarify
employee’s status confirmed employee’s reasonable belief that she was
discharged).
they had been discharged based on the respondent’s
words and conduct. As in Hale, I would find that the
Respondent’s words and conduct—threatening Smith
with loss of employment, removing him from the sched-
ule, telling him to go home, and failing to clarify his
status when provided the opportunity—would have rea-
sonably led Smith to believe that he had been terminated
for protected activity.
At the very least, there existed an ambiguity as to
whether Smith was discharged. Under established Board
precedent, if an employer’s “acts created a climate of
ambiguity and confusion which reasonably caused [em-
ployees] to believe that they were discharged or, at the
least, that their employment status was questionable be-
cause of their [protected] activity, the burden of the re-
sults of that ambiguity must fall on the employer.” Flat
Dog Productions, supra, 331 NLRB at 1571 (quotations
and citations omitted). Thus, it was the Respondent’s
burden to clarify any ambiguity caused by its actions that
would have reasonably caused Smith to believe that his
employment status was questionable.
The majority applies the wrong burden of proof and,
consequently, reaches the wrong result. My colleagues
state that “the Respondent twice offered Smith the oppor-
tunity to clarify his status, but he failed to do so.” How-
ever, as discussed above, it was not Smith’s burden, but
the Respondent’s burden, to clarify any ambiguity caused
by its actions that would have reasonably caused Smith
to believe that his employment status was questionable.
See Flat Dog Productions, supra, 331 NLRB at 1571
(quoting Brunswick Hospital Center, Inc., supra, 265
NLRB at 810).5
Under the proper burden of proof, the facts relied on
by the majority are plainly insufficient to satisfy the Re-
spondent’s burden. On January 24, Johnson, who had
just threatened Smith earlier that day, told Smith he
wanted to talk to him. Yet, when Smith agreed, Johnson
ignored Smith and made him wait in Johnson’s office for
several minutes while Johnson performed other work.
On January 25, Smith twice sought to clarify his situation
by asking why he had been removed and what to do, but
Headen merely responded that Johnson had removed
Smith and that Smith might try what he had unsuccess-
fully attempted the previous day: “If I was you, I’d go
see Johnson.” The Respondent’s above actions did not
clarify Smith’s questionable employment status, but in
5 Pink Supply Corp., 249 NLRB 674 (1980), relied on by the major-
ity, is distinguishable. The Pink Supply Board expressly stated that
“[t]his is not a case where an ambiguity was created by Respondent’s
wrongdoing.” The same cannot be said here, where the Respondent
wrongfully threatened Smith with discharge, wrongfully removed him
from the schedule, and wrongfully sent him home.
LANCE INVESTIGATION SERVICE 1113
fact added to the “climate of ambiguity and confusion.”
Id. Consequently, “the burden of the results of that am-
biguity must fall on the [E]mployer.” Id.
Accordingly, for all these reasons, I would affirm the
judge’s finding that Smith did not abandon his employ-
ment, but was discharged in violation of Section 8(a)(1)
of the Act.6

Christian R. White, Esq. and Terry Morgan, Esq., for the Gen-
eral Counsel.
Jeannetta Alexander, Esq. (Catafago Law Firm, P.C.), for the
Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in New York, New York, on November 15,
2001. Robert Smith, an individual, filed the charge on February
8, 2001, and the complaint issued on May 21, 2001.1 The com-
plaint alleges that the Respondent, Lance Investigation Service,
Inc., discharged Smith on January 25 because he claimed his
right to vacation pay under the terms of a collective-bargaining
agreement. Smith’s discharge is alleged as a violation of Sec-
tion 8(a)(1) and (3) of the Act under the theory of NLRB v. City
Disposal Systems, 465 U.S. 822 (1984). On June 4, the Re-
spondent filed an answer to the complaint denying the factual
allegations of the complaint and denying further that it violated
the Act as alleged. The Respondent asserted at the hearing and
in its brief that Smith was not discharged but voluntarily quit
after being taken off the work schedule.
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 Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business at 1438 Boston Road, Bronx, New York, is engaged in
the business of providing residential security services. The
Respondent, in conducting its operations, annually purchases
products, goods, and materials valued in excess of $50,000
from points outside the State of New York, or directly from
suppliers within the State of New York who purchased those
supplies directly from points outside the State of New York. By
admitting these facts, the Respondent has essentially admitted
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and I so find. See
Siemons Mailing Service, 122 NLRB 81 (1959). The Respon-
dent amended its answer at the hearing to admit, and I find, that

6 I would find it unnecessary to decide whether Smith’s discharge
also violated Sec. 8(a)(3) of the Act because the finding of an addi-
tional violation would not materially affect the remedy. In addition, I
would find that the Respondent’s reinstatement offer to Smith was
invalid because it lapsed after an unreasonably short period of 5 days.
1 All dates are in 2001 unless otherwise indicated.
Special and Superior Officer’s Benevolent Association, the
Union, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent provides security services to a number of
clients, including the Diego Beekman House, a government
subsidized housing development located in Bronx, New York.
Security guards employed by the Respondent at the Beekman
facility are responsible for protecting the property and the ten-
ants of the building. Ralph B. Johnson is the president of the
Respondent. His son, Keith Johnson, is the Respondent’s vice
president of finance and operations.2 One of his responsibilities
is to oversee the administration of the payroll department.
James Harris, the Respondent’s senior vice president, is respon-
sible for labor relations. Roy Headen is the Respondent’s secu-
rity manager and the direct supervisor of its security guards at
the Beekman House. The complaint alleges and the Respondent
admits that Keith Johnson and Headen are supervisors and
agents of the Respondent within the meaning of the Act.
The Union has represented a unit of the Respondent’s secu-
rity guards, including sergeants, employed throughout the New
York metropolitan area for a number of years under a series of
collective-bargaining agreements. The collective-bargaining
agreement in effect between the Respondent and the Union in
January 2001 included, at article X, vacation benefits for all
regular full-time employees. The Respondent employed Smith
as a regular full-time security guard at the Diego Beekman
House from March 1, 1998, until January 25, 2001.3 There is no
dispute that Smith was covered by this collective-bargaining
agreement.
Smith testified, without dispute, that he submitted a request
for vacation with pay at the beginning of November 2000. His
request was for the week of December 17, 2000. He did not
receive his vacation pay before going on vacation. On Decem-
ber 18, 2000, while on vacation, Smith went to the Respon-
dent’s office on Boston Road to pick up his regular paycheck.
While at the office, Smith inquired about his vacation pay but
he did not receive it. According to Smith, he made several
phone calls to the office about his vacation pay and again vis-
ited the office to pick up his paycheck on January 1, which was
the next regular payday. Smith still did not get his vacation
pay.4 In January, Smith also spoke to his supervisor, Headen,
about his vacation pay. Headen told him to call Keith Johnson
at the office.
2 Ralph Johnson did not testify in this proceeding and appears to
have had no involvement in the matter at issue here. Thus, any refer-
ence in this decision to the Johnson surname is intended to be a refer-
ence to Keith Johnson.
3 Smith had worked at this location before March 1998, under a
predecessor security contractor.
4 An outside contractor prepares the Respondent’s regular payroll.
Paychecks are usually delivered to employees at their worksite. If not
working on payday, employees may go to the office to pick up their
checks. There is no dispute that checks for vacation pay are written in-
house, under Keith Johnson’s supervision, and are issued separately.
Employees are required to pick up their vacation pay at the office.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
Smith testified that he attempted several times during Janu-
ary to reach Johnson by phone, without success. Although he
left messages for Johnson to call him, Johnson never did. At
one point, after leaving yet another message for Johnson to call
him, Smith said to the secretary who took the message, “what
do I have to do to get my vacation pay, get a lawyer?” When he
still received neither a response to his message, nor his vacation
pay, Smith asked Headen, on January 24, if Headen knew the
status of his vacation pay. Headen again told Smith that he
would have to speak to Johnson. Headen also told Smith that
Johnson was in the office at that time, so Smith called again
and asked to speak to Johnson. This time, Johnson took Smith’s
call.
Smith began the telephone conversation by identifying him-
self to Johnson, telling him where he worked and asking about
his vacation pay. When Smith told Johnson that he still had not
received pay for the vacation he took in December, Johnson
said he would look into it. According to Smith, Johnson then
said, “[O]h yes, Robert Smith, you’re that wise guy who threat-
ened me with a lawyer.” Smith told Johnson that he had not
threatened him. Smith explained to Johnson why he had left
such a message. Smith testified that Johnson then said, “[W]e’ll
see how long you’re working for me at that site, wise guy.”
Smith asked if Johnson was threatening him and said, “If
you’re threatening me, I’ll have to make it a class action.”
Johnson told Smith his check was at the office and he could
come pick it up. Smith denied that he threatened Johnson or
used profanity during this conversation.
Smith testified further that he went to the Respondent’s of-
fice after punching out that day. Johnson was there and handed
Smith his vacation check. Johnson told Smith he wanted to
speak to him and Smith said he also wanted to speak to John-
son. Johnson was doing other things in the office and asked
Smith to have a seat and wait. When Smith saw Johnson start
going through a door to another part of the office, Smith went
up to Johnson and said he was on his own time and had things
to do. Johnson again told him to sit down and wait. According
to Smith, he sat down and waited for several minutes. When
Johnson still had not come out to speak to him, Smith left with-
out saying anything to the secretary in the office.
According to Smith, the next day, January 25, about an hour
after punching in and going to his post, Headen called him on
the radio and told him to respond to the office. After waiting for
someone to relieve him, Smith left his post and went to the
office. Headen told Smith to punch out and go home; he was
“off the schedule.” When Smith asked why he was off the
schedule, he was told that Keith Johnson took him off the
schedule. Smith asked Headen what he would do and Headen
told Smith, “[I]f I was you, I’d go see Keith Johnson.” Smith
acknowledges that he did not go to the office to see Johnson, or
make any other contact with him after leaving the Beekman
House on January 25. Instead, Smith called his union represen-
tative, Jose Cardona, and told him what happened. According
to Smith, Cardona told him that he would be meeting with the
Respondent and would look into the matter. The next day,
January 26, Smith faxed to Cardona, and to the Board’s Re-
gional Office, a letter detailing his efforts to get his vacation
pay and his removal from the schedule.5 Smith characterized
the letter as “notification of an official grievance against [the
Respondent].” At the end of the letter, Smith described the
remedy he was seeking through this “grievance.” Smith admit-
ted that he did not have any further contact with the Union or
the Respondent after faxing this grievance. He did file the in-
stant unfair labor practice charge on February 8.
Smith testified that he did not go back to the Respondent’s
office, or otherwise attempt to contact the Respondent directly
because he wanted union representation. According to Smith,
once he faxed his “grievance” to the Union and the NLRB, he
assumed one or the other would resolve the matter for him.
Smith admitted that he never returned his company-issued uni-
form after leaving the Beekman House on January 25.
Smith’s testimony was corroborated to a great extent by
Patricia Houston, another security guard employed by the Re-
spondent at the Beekman House, and by the Respondent’s rep-
resentatives who testified. Headen confirmed that Smith had
submitted his vacation request in November and that Smith
asked him about his vacation pay on at least three separate oc-
casions. According to Headen, he told Smith each time that he
had to speak to someone in the payroll department. Headen also
confirmed that, the last time Smith asked about his vacation
pay, Headen told him to speak to Keith Johnson. Headen ac-
knowledged taking Smith’s name off the schedule on January
25 at Johnson’s direction. According to Headen, Johnson did
not give any reason for this action and did not specify any dura-
tion for keeping Smith off the schedule. Headen also acknowl-
edged that he informed Smith on January 25 that he was off the
schedule. Headen testified, in conflict with Smith, that Smith
used profanity during this encounter. This testimony was incon-
sistent with an affidavit Headen signed during the Board’s in-
vestigation of the charge. Headen did not include any profanity
in his pretrial description of this conversation with Smith.
Houston was in the office on January 24 when Smith finally
received his vacation pay. She had gone to the office on another
matter and saw Keith Johnson hand Smith a check. Houston
testified that she heard Smith ask Johnson if he could speak
with him and she heard Johnson tell Smith to have a seat. Hous-
ton recalled that, after waiting a few minutes, Smith said to no
one in particular, “this is my time, I have things to do, I’m not
waiting” and left. A few minutes later, Houston saw Johnson
come out of the office, looking for Smith. When the dispatcher
told Johnson that Smith left, Houston heard Johnson say,
“[T]ake him off the schedule.” Houston testified that she did
not hear Smith use any profanity while in the office that day.
She also testified that, in the 5 years she has known and worked
with Smith, she has never heard him use profanity.
Keith Johnson admitted receiving a message in January that
Smith had called about his vacation pay and that the message
indicated that Smith was going to hire an attorney to get his
vacation pay. Johnson also acknowledged having one telephone
conversation with Smith in late January and telling Headen to

5 Smith explained at the hearing that he faxed a copy of this letter to
the Board’s office because he had already spoken to a Board agent
about his vacation pay and about a deduction from his paycheck on
January 1 that he believed was illegal.
LANCE INVESTIGATION SERVICE 1115
take Smith off the schedule after this conversation. However,
Johnson’s version of the conversation differs significantly from
that of Smith. According to Johnson, Smith was irate, demand-
ing his “f—ing vacation pay” and accusing the Respondent of
“f—ing around” with him. Johnson testified that Smith said he
was “entitled to” his vacation pay. Johnson also recalled that
Smith said that he had “class-action suits” filed against the
Respondent and “you’re all going to get yours, you’ll see.”
Johnson testified that he told Smith that his check had been
sitting in the office for 2 weeks. According to Johnson, Smith
responded, “I’m gonna get the Union, I’m gonna sue you per-
sonally, you’re going to get yours, Lance is going to see, I’ve
got a class action against Lance.” Johnson testified that he fi-
nally hung up on Smith because Smith was yelling at him over
the phone. Johnson testified further that he did not recall seeing
Smith in the office after this conversation, did not recall speak-
ing to Smith in the office, and did not recall giving Smith his
check.
Johnson testified that he told Headen to remove Smith from
the schedule because Smith had been insubordinate with him
during the telephone conversation. According to Johnson, he
only wanted to speak to Smith to find out what the problem was
before putting him back on the schedule. Johnson denied that
his instruction to Headen to take Smith off the schedule was the
equivalent of a termination. Johnson testified that, under the
Respondent’s procedures, when someone is taken off the
schedule, they are expected to go to the office for a meeting
before being put back on the schedule. Houston and Headen
also testified that being taken off the schedule usually meant
that the Respondent wanted to see the employee in the office.
However, being taken off the schedule was normally accompa-
nied by a written notification of some infraction subject to dis-
cipline. Johnson and Headen both acknowledged that Smith
was an exemplary employee who had not received any disci-
pline before this incident.
Johnson’s testimony that he removed Smith from the sched-
ule for insubordination is inconsistent with the affidavit he
signed during the investigation. Although Johnson described
the telephone conversation in the affidavit, he did not character-
ize Smith’s conduct as insubordination. Although Johnson testi-
fied that he told Headen that insubordination was the reason for
removing Smith from the schedule, he did not say this in his
pretrial affidavit. In fact, Headen testified at the hearing that
Johnson did not give him any reason for the removal of Smith
from the schedule. At the hearing, Johnson was forced to con-
cede that there is nothing in the Respondent’s records that
would document that Smith was removed from the schedule for
insubordination.
The Respondent also called James Harris, its vice president
with labor relations’ responsibility, to testify that he received
no grievance from the Union about Smith’s vacation pay or
removal from the schedule. Harris also denied that anyone from
the Union contacted him for a meeting to discuss Smith or his
grievance. Harris testified that no such meeting was ever
scheduled.
To the extent there is any conflict in the testimony, I have
chosen to credit Smith over Headen and Johnson. I found Smith
to be a generally credible witness. Headen’s and Johnson’s
testimony was less credible because of inconsistencies between
them, and inconsistencies with their prior affidavits. Moreover,
it appears to me that Johnson’s claim of insubordination was no
more than a post hoc rationalization for the actions he took. The
alleged use of profanity by Smith appears to be out of character
for him in light of his prior record of employment and the tes-
timony of Houston.
The General Counsel alleges that the Respondent terminated
Smith on January 25 because he engaged in concerted activities
protected by Section 7 of the Act. The Supreme Court, in City
Disposal Systems, supra, approved of the Board’s interpretation
of Section 7 of the Act as including, within the definition of
“concerted activity,” an individual employee’s “reasonable and
honest invocation of a right provided for in his collective-
bargaining agreement.” Such activity falls within the “mutual
aid and protection” clause even if the individual employee has
his own interests most immediately in mind. 465 US at 830,
supra. The Court agreed with the Board that the employee did
not have to make an explicit reference to the collective-
bargaining agreement when invoking his rights as long as it
was reasonably clear that the right asserted was one encom-
passed by the agreement. Id. at 839–840. The Court also agreed
with the Board that an employee’s invocation of a perceived
contractual right was protected regardless of whether the em-
ployee turned out to have been correct in his belief as to his
rights. Id. at 840. See also Interboro Contractors, 157 NLRB
1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). Accord: Union
Carbide Corp., 331 NLRB 356 (2000).
The Respondent appears to concede that Smith’s efforts to
get his vacation pay in January was concerted activity within
the meaning of the Act, as interpreted by the Court in City Dis-
posal, supra. The above evidence establishes clearly that it was.
The Respondent argues that Smith was not terminated for seek-
ing vacation pay under the collective-bargaining agreement.
Rather, according to the Respondent, Smith was removed from
the schedule on January 25 because he had been insubordinate
during his telephone conversation with Keith Johnson. Under
the Respondent’s view, Smith’s conduct was not protected.
Moreover, the Respondent contends that Smith’s removal from
the schedule did not amount to termination, but was intended
solely to get Smith to come to the office for a meeting with
Keith Johnson.
In order to resolve this case, it must first be determined
whether Smith was terminated, or simply abandoned his em-
ployment by failing to contact the Respondent after his removal
from the schedule. The test applied by the Board to such ques-
tions is whether the actions of the employer would reasonably
lead an employee to believe he or she had been terminated. If
the employer’s actions create any ambiguity regarding the em-
ployee’s status, the Board will resolve the ambiguity against the
employer. Ridgeway Trucking Co., 243 NLRB 1048 (1979),
enfd. 622 F.2d 1222 (5th Cir. 1980). Accord: MDI Commercial
Services, 325 NLRB 53 (1997); Apex Cleaning Service, 304
NLRB 983 fn. 2 (1991); Express Messenger Systems, 301
NLRB 651 (1991).
The Respondent admits that it informed Smith on January 25
that he had been removed from the schedule. It is undisputed
that Smith was not given any reason for this action. The Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
spondent’s action occurred the day after Smith was told by
Keith Johnson, in response to Smith’s demand for his vacation
pay, that Smith wouldn’t be working for the Respondent at the
site much longer if he threatened Johnson with legal action. I
find that Johnson’s instruction to Headen to remove Smith from
the schedule was not consistent with the procedures described
by Johnson, Headen, and Houston with respect to disciplinary
infractions. It is undisputed that Headen did not cite any disci-
plinary reason for this action and did not give Smith any written
disciplinary notice to sign. Because Smith had never been dis-
ciplined before, he would not necessarily know that his removal
from the schedule meant he had to go to the office. Headen’s
suggestion that Smith go to the office to see Johnson about his
removal from the schedule, in response to Smith’s asking what
Headen would do in the situation, did not clarify Smith’s status.
Smith’s reluctance to take this advice was understandable in
light of the tenor of his recent contact with Johnson. I find that
the Respondent’s action in removing Smith from the schedule,
in the context of the conversation Smith had with Johnson the
previous day, would reasonably lead Smith to believe he was
terminated.
I also find that Smith’s actions after being told to go home
because he was “off the schedule” are not consistent with intent
to abandon his job. On the contrary, he wrote to his union the
next day, requesting a “grievance” be filed on his behalf seek-
ing reinstatement. The fact that he sent a copy of this letter to
the NLRB’s regional office and filed the instant charge soon
thereafter is further indication Smith did not voluntarily quit,
but believed he had been terminated. Having contacted his
Union and the government for assistance in getting his job
back, Smith’s failure to communicate with the Respondent
directly is not proof that he voluntarily quit. Smith credibly
testified that he expected either the Union or the Board to get
him his job back.
Having found that the Respondent terminated Smith by re-
moving him from the schedule, it must be determined what
motivated the Respondent to take this action. I have already
credited Smith’s version of his conversation with Johnson. I
thus find that Smith did not use profanity or make any other
statements that would cause him to lose the protection of the
Act. See Indian Hills Care Center, 321 NLRB 144, 151 (1996);
Consumers Powers Corp., 282 NLRB 130, 132 (1986). It is
clear that Johnson instructed Headen to remove Smith from the
schedule because Smith had invoked his right to vacation pay
under the contract, threatening to go to the Union, or pursue
legal action, if he did not get what he was entitled to. Because
Smith’s actions were protected, Johnson’s reaction must be
found to have been unlawfully motivated. The Board has re-
cently held that where the conduct for which an employee is
discharged is intertwined with protected concerted activity, the
Board’s Wright Line6 analysis does not apply. Felix Industries,
331 NLRB 144, 145 (2000); Nor-Cal Beverage Co., 330 NLRB
610, 612 (2000). Accordingly, I find as alleged in the com-

6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
plaint, that the Respondent terminated Smith on January 25 in
violation of Section 8(a)(1) of the Act. 7
CONCLUSIONS OF LAW
1. By terminating Robert Smith on January 25, 2001, be-
cause he sought vacation pay under the terms of a collective-
bargaining agreement, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. The Respondent did not violate Section 8(a)(3) of the Act
by terminating Robert Smith.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having unlawfully
discharged Robert Smith, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Johnson testified that, on May 2, a Wednesday, he sent
Smith a letter offering him reinstatement to his regular schedule
with the same rate of pay, starting on May 3. The letter, which
is in evidence, asks Smith to call Johnson with his decision by
the following Monday, May 7. The letter advises Smith that
failure to contact Johnson by that date would be considered a
rejection of the offer. Johnson testified that this letter was sent
by certified mail to the home address identified in Smith’s per-
sonnel file. The letter on its face does not show the address to
which it was addressed. The Respondent was unable to produce
a return receipt card showing actual receipt of the letter. Smith
denied receiving this letter. According to Smith, he did not see
the letter until it was shown to him by counsel for the General
Counsel at the hearing. The Board has held that a letter purport-
ing to offer reinstatement will be deemed invalid “if the letter
on its face makes it clear that reinstatement is dependent on the
employee’s returning on the specified date, or if the letter oth-
erwise suggests that the offer will lapse if a decision on rein-
statement is not made by that date.” Cassis Management Corp.,
336 NLRB 961 (2001), quoting from Esterline Electronics
Corp., 290 NLRB 834, 835 (1988). I find that the Respondent’s
May 2 letter, even if it had been received by Smith, was invalid
and did not satisfy the Respondent’s obligation to remedy the
unfair labor practice found here.
[Recommended Order omitted from publication.]
7 The complaint also alleges a discriminatory motive under Sec.
8(a)(3) of the Act. There is no evidence of any antiunion animus that
would have motivated the Respondent’s actions toward Smith. I shall
thus recommend dismissal of this allegation.