Brink's, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 25, 2013

29-CA-097556 (N.L.R.B. Nov. 25, 2013)

JD(ATL)–30–13
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
BRINK’S, INC.
and CASE 29–CA–097556
FEDERATION OF ARMOURED
CAR WORKERS
Mathew Jackson, Esq. and Kimberly Walters, Esq.,
for the General Counsel.
J. Howard Daniel, Esq. and John T. Merrell, Esq.,
of Greenville, South Carolina, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in
Brooklyn, New York, on July 16, 17, August 26, September 10, 11, and 12, 2013. The
Federation of Armored Car Workers (Union) filed the charge on January 18, 2013 and the
Acting1 General Counsel issued the complaint on April 11, 2013. An amendment to the
complaint issued on April 26, 2013.2
The complaint, as amended on April 26, 2013, alleges that Brink’s Inc. (Respondent)
suspended employee Marvin Francis (Francis) on January 3, 2013 and then terminated Francis

1 Although Acting General Counsel Lafe E. Soloman issued this complaint, General Counsel
Richard F. Griffin, Jr. was subsequently confirmed and serves in this capacity as of the date of
this decision. Accordingly, the prosecuting entity of the Agency is herein referenced as the
General Counsel.
2 A second amendment to the complaint that was offered and received on August 26, 2013,
added remedy language that had been inadvertently omitted from the original complaint and
the amended complaint.
JD(ATL)–30–13
2
on January 16, 2013, because he formed the Union and engaged in concerted activities. The
amended complaint further alleges that since January 16, 2013, Respondent has unlawfully
failed to reinstate Francis or to offer him reinstatement to his former job. Respondent filed a
timely answer and amended answer.
5
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT10
I. JURISDICTION
Respondent, a Delaware corporation, with a main office and place of business in
Coppell, Texas, and an office and place of business in Brooklyn, New York, has been 15
engaged in the business of providing cash management logistics solutions and secure
transportation services of cash and other valuables to banks, retailers, and other commercial
and government agencies in the United States and abroad. During the year preceding the
issuance of the complaint, Respondent provided services in excess of $50,000 to customers
located outside the State of New York. Respondent admits, and I find that Respondent is an 20
employer within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act
(the Act).
In its initial answer, Respondent denied that the Union is a labor organization. By
joint exhibit, however, Respondent stipulated that the Union filed a representation petition on 25
January 15, 2013, seeking to represent its full-time and part-time security officers and
employees. The representation election was conducted on February 21, 2013, and a majority
of votes were not cast for the Union.3 The Regional Director for Region 29 of the National
Labor Relations Board the Board) issued a certification of results of election on March 7,
2013. On the first day of the hearing in this matter, Respondent amended its answer to admit 30
the Union’s labor organization status. Accordingly, I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
35
A. Background
1. Respondent’s management and corporate composition
Brink’s is the parent company for Brink’s Inc. (Respondent) and Brink’s Global 40
Services (BGS). For purposes of this proceeding, Respondent’s Brooklyn, New York facility
and BGS’s John F. Kennedy (JFK) airport facility are the only relevant facilities.
Respondent’s Brooklyn facility is one of 23 branches operating in the northeast region of the
country and it is the site of the alleged unfair labor practices. Respondent has a total of

3 Out of a total of 160 valid votes counted and unchallenged, 24 votes were cast for the Union.
JD(ATL)–30–13
3
approximately 7000 employees for its entire operation. During the relevant time period,
Michael Foreman (Foreman) served as Respondent’s strategic market director for the
Brooklyn facility. In that capacity, Foreman was responsible for all of Respondent’s
functions within the metro New York area, including sales and operations. Foreman reported
to Bill Vechiarella; Respondent’s regional vice president for the northeastern market. During 5
the same time period, Garth Young (Young) reported to Foreman and served as the senior
manager for route logistics. This area of responsibility is also referenced as Cash-In-Transit
or CIT; the department that facilitates the actual pickup and delivery of cash and valuables
that are also known as liabilities. Bryan Rosenthal held the position of senior human resources
director and he worked primarily at Respondent's Brooklyn facility. 10
Brink’s Global Services (BGS) is a global division and subsidiary of the Brinks
Company. BGS’s president is located in London, England and it has approximately 60,000
employees who serve customers on a global level; often transporting foreign currency as well
as other cash and valuables internationally. Tony Turrado is in charge of the BGS facility at 15
JFK. The CEO for the Brinks Company is responsible for managing both Respondent and
BGS.
2. Labor relations history
20
As referenced above, the Union sought to represent all of the employees working as
security officers and guards at Respondent’s Brooklyn facility as well as employees working
at BGS’s JFK facility. In elections that were held in February 2013, a majority of eligible
voters did not select the Union as their bargaining representative. Employees working as
mechanics at the Brooklyn facility are represented by a labor organization and at the time of 25
the hearing in this matter, there was a collective bargaining agreement in existence covering
these employees.
3. Respondent’s operation
30
The CIT function of Respondent’s operation involves the physical transfer of cash,
involving the United States Federal Reserve, various banking institutions, and retail customers
using armored trucks. The CIT department services automatic teller machines (ATMs) and
computerized safes known as CompuSafes. Typically, there is a driver and a messenger in
each truck. If the truck is transporting more than $5 million, there is a security regulation that 35
mandates that the truck have two messengers. The primary duty of the driver is to get the
truck safely to and from the facility to each stop. The main messenger on each route is in
charge of the route. The second messenger on the truck is commonly referred to as a guard;
however, he performs the same basic messenger duties. There are approximately 210
employees working at Respondent’s Brooklyn facility and approximately 156 employees40
work as drivers or messengers.
From its Brooklyn facility, Respondent services approximately 250 ATMs each day.
When the messenger arrives at the designated ATM and after deactivating the ATM’s alarm,
the messenger can obtain a receipt that documents the amount of cash contained in the 45
machine based on the transactions from the previous servicing of the machine. The cash is
JD(ATL)–30–13
4
contained in separate cassettes based on the denomination of the bills. The messenger
removes the cash from the machine and seals it in a bag with the corresponding receipt for
transport back to the facility. The messenger then loads the ATM with new cash and resets
the machine for operation. If the denomination of the bills becomes mixed and placed in the
wrong cassettes, the error is termed a cross-load. 5
CompuSafes are electronic safes that are leased by Respondent to retail customers to
hold excess cash beyond the amount of cash normally maintained in the customer’s cash
register. During the course of the day, the retail customer’s employees log into the safe to
deposit cash. At the end of the day, the safe generates an email to Respondent and to the 10
customer’s bank documenting the amount of cash deposited into the safe on that particular
day. The bank then gives the customer generated credit for the amount of the deposit. When
Respondent’s messenger services the safe, the messenger obtains a receipt from the safe
showing the amount of cash collected each day; including a record of the specific
denominations of the cash collected, as well as, the time the cash was deposited in the 15
machine. The cash is maintained in the safe in two cassettes. The messenger removes the
cassettes containing the cash from the machine and replaces them with empty cassettes. Each
truck maintains empty cassettes for the messengers to use in servicing the CompuSafes.
When the trucks return to the facility from the assigned route, the messenger gives all 20
the cash and paperwork to the vault clerk who validates everything picked up by the trucks.
The sealed bags and cassettes are moved to the cash room where they are unlocked under
camera, counted, and validated. There are over 300 cameras in Respondent’s facility. A
“variance” is the term used to describe the difference between the amount shown on the
receipts for the ATMs or safes and the actual amount of money counted in the cash room. 25
When a variance is discovered in the cash room, a second count is conducted in the presence
of a supervisor. If there is still a difference between the receipts and the cash, the variance is
reported to the reconciliation department.
Jessica Rosario testified during the underlying proceeding and she is one of three 30
reconciliation clerks who deal with identified variances. The reconciliation clerks review
various records to determine whether there is a true loss. These records include the SL1
forms completed by the messenger for each stop on their route. The SL1 forms are contained
in each bag of cash the messenger is expected to load into an ATM. Based on the receipts
generated by the machine, the messenger uses the form to record the amount of cash believed 35
to have been removed from a machine. The messenger servicing the machine is identified on
the SL1 form by a preprinted listing of the messenger’s name or a handwritten listing of the
messenger’s name. In investigating a variance, the clerks also review the guide sheets that are
completed by the drivers for the route in question. In addition to other information that must
be completed about the particular route, the guide sheet identifies the individuals who serve as 40
the driver, messenger, and guard for that specific route.
Foreman testified that a variance occurs when the records are out of balance and a true
loss is the amount that Respondent must pay a customer for cash that is missing. Rosario
testified that when Respondent determines that a true shortage has occurred, the reconciliation45
clerk contacts the customer, informs management, and gathers all the relevant data related to
JD(ATL)–30–13
5
the loss. She testified that in investigating variances, she looks at the crew composition on the
day that the loss was discovered, as well as, the crew composition on the previous date of
service for the machine in question. She explained that a messenger on either crew could
have caused the loss in issue. She also testified that when she reviews the SL1’s in her
investigation of a loss, she cannot make any changes on the form to mark through any 5
messenger’s preprinted name or to add another employee’s name to the form.
B. Marvin Francis’ Employment With Respondent
1. Francis’ employment history10
Marvin Francis began working for Respondent in January 2008. Other than 2 to 3
days during 2012, he worked exclusively at Respondent’s Brooklyn, New York facility.
When he began his employment, Francis worked as an ATM technician. The ATM
technicians are responsible for serving both the ATMs, as well as CompuSafes. While 15
Francis was waiting to qualify to carry a weapon, he also worked as a driver for the armored
vehicle. Once Francis received his weapon and on or about May 2008, Francis began
working as an ATM messenger for Respondent. As a messenger, Francis’ job was to
transport cash or currency to and from the Respondent’s facility to its customers. During the
remainder of Francis’ employment, Francis occasionally worked as a driver if he were 20
needed. He estimated that on the average he served as a driver four times during the month.
2. Francis' daily duties as a messenger
Francis testified in detail concerning his normal routine as a messenger. At the 25
beginning of his shift, he checked to determine his assignment on the armored truck for that
particular day. If he were designated as the messenger, he retrieved what he described as the
"cage;" a unit that contains the cash to be delivered, information about the route, and the
paperwork associated with that route. The paperwork includes a guide sheet, a "D" sheet or
delivery sheet, an "H" sheet, and a pick list. The pick sheet contains information about the 30
cash bags; including the quantity of cash and the bag seal number. The delivery sheet will
show the priority for servicing the customers. When the messenger is at the customer's site,
the customer will sign the delivery sheet to show their receipt of the cash or “liabilities”
delivered by the messenger. The "H" sheet reflects liabilities that are to be held over for
delivery to a certain date or time for a customer. The purpose of the D and H sheets is to 35
record all items picked up during the route and returned to the branch. When the crew returns
to the branch, the messenger gives the D and H sheets to a vault clerk, who verifies that each
item recorded on the D and H sheets has been returned to the branch. Young testified that
Respondent’s standard procedure is for the messenger to fill out the D sheet while the crew is
at the customer’s location. 40
One of the more significant documents discussed by various witnesses in the trial is
the guide sheet. This document contains specific information about the employees assigned to
a particular route and about their route schedule. Francis testified that the driver usually
completes the guide sheet by listing the employees who are designated as messenger, driver, 45
and second messenger/guard. Francis testified that the guide sheet accurately describes who
JD(ATL)–30–13
6
is on the route. The guide sheet contains a section to record the beginning and ending mileage
for the truck and the time that the truck leaves and returns to the Brooklyn facility. The
customers' names, addresses, and telephone numbers are preprinted on the guide sheet, in
addition to any specific guide notes for specific customers. A typical guide note would direct
the employees on the truck to contact the customer 10 minutes in advance of arrival. The 5
guide sheet shows the time that the messenger clocks in and out, as well as when the route
crew arrive and leave the customer's location.
All of the cash that is to be taken from the facility to the various customers will be
maintained in the cage. Francis testified that the cash is in individual plastic bags that are 10
labeled for each customer. The cash is also stored in bags and each bag is sealed with the
customer’s name, location, and the amount. The messenger is responsible for checking off
the cash listed on the pick sheet and then putting the cash into the truck. After removing the
cash from the cage, the messenger must also verify that he has the correct keys needed to
open each customer's safe or equipment. Francis explained that each route has radios, 15
customer keys, and truck keys that are kept in a pouch and maintained in the cage. After
loading the truck, the messenger gives the guide sheet to the driver who will complete a
portion of the guide sheet. Once the messenger again verifies the keys necessary for the
deliveries, the truck can leave the facility for the designated route.
20
At one time the trucks were staffed with a messenger, guard, and driver, however, at
an undetermined date in 2011 or 2012, the guard position was eliminated and Respondent
began scheduling two messengers rather than a guard and a messenger. One of the messengers
is designated as the lead messenger for that route.
25
3. Francis’ involvement with the 2011 loss
In July 2011, Respondent received notice of a $31,000 variance from Hess, one of
Respondent’s customers. The customer reported that their records showed that Respondent’s
employees picked up $31,000 from their CompuSafe; however, there was no record that it 30
was credited to Hess’ account.
As referenced above, the CompuSafe is a computer-operated safe that is leased by
Respondent to some of its retail customers. When the customer deposits money into the safe,
the cash is secured and recorded. At the end of the business day, the safe sends Respondent 35
and the customer a report concerning the amount of money deposited and the customer’s bank
will give the customer credit based on the money deposited into the safe. When the safe’s
cassettes are full, Respondent sends a crew to remove the cassettes and replace them with
empty cassettes.
40
On July 16, 2011, Hess contacted Respondent to report that one of its safes was full
and would not accept any more cash. Hess requested an unscheduled pick up of the cash in
the machine. Marvin Francis was contacted on route 901 and instructed to make the
emergency pickup. The guide sheet for July 16, 2011, shows that the Hess pickup was
handwritten at the bottom of the form, showing the arrival and departure times for the stop as 45
12:20 and 12:27 p.m. respectively. The form also showed that one item was picked up during
JD(ATL)–30–13
7
the stop. Francis’ name is handwritten at the top of the form showing him to be the
messenger on the route. Foreman testified that when questioned about the variance, Francis
did not deny that he was the messenger on the route that day.
Messengers returning to the facility submit a form identified as a holdover sheet to the 5
vault clerk documenting the items from the route customers that were either brought back to
the facility or taken from the customer’s facility to a third location such as a bank or financial
institution. The form is preprinted with the pickup and delivery locations. Foreman testified
that it is the messenger’s responsibility to complete the form and submit it to the vault clerk
upon return to the facility. The vault clerk then validates the information contained on the 10
form. The holdover form for July 16, 2011, contains the preprinted route stops for route
number 901; however, the Hess emergency stop was not added to the form. Young testified
that he spoke with Francis about the omission of the stop on what is identified as a “D” sheet.
Young testified that Francis told him that he had forgotten to complete all the paperwork on
the stop. 15
There is no dispute that Francis made the Hess pick up and that he did not complete
the documentation showing that he was returning approximately $31,000 from Hess to the
facility. Francis testified that he made the pick up at Hess and returned to the branch facility
at approximately 5 p.m. He remained at the facility for about an hour and a half checking off 20
the items that he brought back to the facility. At approximately 6:30 p.m., a supervisor asked
him to go out for another pickup. Francis went out for the additional pickup and left the
liabilities on the truck from the route containing the Hess pick up. Foreman testified that
because there are always empty cassettes on the trucks, the vault clerk would not have known
to look on the truck for the Hess deposit if the messenger did not log the pickup on the proper 25
forms.
Respondent did not learn that the Hess cassettes were missing until Hess contacted
Respondent to report that their account needed to be credited for the money removed from the
safe on July 16. When questioned, Francis acknowledged that he had forgotten to record the 30
pickup of the Hess CompuSafe on the D and H sheets while he was on the run. Foreman
asked Michael Buckley; Respondent’s Security Manager for the Northeast to investigate the
$31,000 variance. Prior to working for Respondent, Michael Buckley was a special agent
with the Federal Bureau of Investigation (FBI) for 32 years. His work with the FBI primarily
involved criminal investigations, organized crime, and bank robberies. As the regional 35
security manager for Respondent, Buckley is responsible for investigating internal and
external losses and promoting the safety of the facilities. Buckley’s geographic area of
responsibility includes the northeast region; which includes not only the Brooklyn facility, but
also 22 other branch facilities in the northeast. Buckley estimated that he conducts hundreds
of investigations for Respondent each year. 40
Buckley reviewed the documentation, spoke with management, reviewed video
footage, and conducted a series of interviews. At the conclusion of his investigation he was
not able to determine what actually happened to the missing money. He could only conclude
that the money was left on the truck and never checked in with the vault clerk. He 45
recommended to Foreman that the money was lost because of carelessness.
JD(ATL)–30–13
8
Based on Buckley’s report, Foreman made the decision to terminate Francis. Foreman
testified that he directed the human resources department to draft a letter of termination for
Francis with an effective date of termination of September 9, 2011. The letter was drafted
and signed by Senior Operations Manager Garth Young. Before the letter issued however, 5
Young appealed to Foreman to give Francis a second chance rather than terminating him.
Young told Foreman that because the company had primarily determined that the missing
cash was due to an error rather than theft, he wanted to give Francis another chance. Foreman
agreed and Francis was not terminated for the July 16, 2011 loss.
10
Young later talked with Francis and told him that a decision had been made to
terminate him; however, he was not going to follow through with the termination. Yong told
Francis that he had put his ass on the line for him. Francis testified that he understood what
Young meant when he said this and he understood that Young had saved his job.
15
4. Francis’ work on the casino route
One of the routes on which Francis worked was route 14, or the “Casino Route.” This
route serviced ATMs at one location; the Resorts World Casino in New York. The ATMs are
owned by Global Cash Access; one of Respondent’s customers. Francis testified that when he 20
worked the casino route, he normally worked with employees Anthony Maysonet (Maysonet),
Jerry Lewis (Lewis), Chrispolo Olivera (Olivera), and Ruben Corchado (Corchado). There
are usually 24 to 30 ATM machines that are serviced on this route.
On a general route, the driver stays with the truck and serves as a guard, while the 25
messengers are outside the truck. The casino route was set up by Young and Foreman to
specifically serve the casino customers. Young testified that the casino wanted Respondent to
service the ATMs in such a way that would not disturb their business and that weapons
wouldn’t be exposed to the general public. The route crew typically starts the route very early
in the morning and the crew will call the casino security checkpoint before arriving. Unlike 30
other customers, the casino can provide a secure place for the truck to be parked and the
driver does not have to remain with the truck for security. The casino security guard
accompanies Respondent's employees at all times while they are in the casino. At the
customer’s instructions, the crew takes the cash obtained from the ATMs and delivers it
directly to Bank of America. 35
Before servicing the casino ATMs, the messengers verify that they have the correct
cash bags for the specific ATM terminals. The bags are labeled with the total amount of cash,
as well as, the specific denominations of the enclosed bills. The messenger is able to gain
entry to the ATM terminal by using a designated settlement card and specific keys for the 40
terminal. The messengers use a very detailed process for documenting the amount of cash that
is contained in the ATM at the time of the messenger's entry to the machine, as well as the
amount of cash that is retrieved from the machine and then added to the machine. The
messenger does this by a series of receipts obtained at the various steps of the process.
During the time that the messenger services the machine, the driver is present and stands 45
guard. The casino's security guard is also present. If there is a second messenger on the
JD(ATL)–30–13
9
route, he will assist the lead messenger. Young testified that because the driver is with the
messengers at the casino ATMs, he will complete the paperwork at the machine. He may also
break off the straps for the cash and pass it to the messenger.
For each ATM that is serviced on a route, there is a separate SL1 form. Two days in 5
advance of the run, the form is preprinted with the date, the ATM identification number, the
run number, the address of the ATM, and often the name of the driver and the messenger who
is expected to be assigned to that particular run. The form is actually printed, however, before
the actual route assignment is made for a particular day. Francis testified that at the time the
ATM is serviced, the messenger will write his name if it is not already on the form. If another 10
messenger's name is on the form, the messenger will cross that name out and write his own
name. The messenger uses the SL1 to document the cash received from the machine and the
cash added to the machine, as well as, the appropriate seal numbers. When the cash is
returned to the facility, the cash amount is verified and documented by the employees in the
cash processing department.15
C. Respondent’s Basis for Terminating Francis
1. Background
20
Foreman testified that when Hurricane Sandy hit the New York area on or about
October 30, 2012, Respondent’s operations were changed. He explained that the storm was
an extremely stressful time on the city as well as on Respondent’s employees and customers.
He recalled that Respondent had not even known where some of its employees were during
the storm and its aftermath. Employees who might otherwise have been able to come to work 25
had difficulty finding gas to get to work and Respondent purchased two 250-gallon gas tanks
in order to distribute gas each day to its employees. Respondent flew in 19 people from its
operations across the country as a response team to run the day to day operations. Foreman
recalled that although he only lived 2 miles from the facility, he stayed in the dispatch office
of the facility night and day for 4 days during the storm period. Foreman testified that for the 30
entire month of November, Respondent’s total focus was to service, deliver, process, or pack
cash to get it out to its customers.
2. Respondent’s response to the variances
35
BAMS is the acronym for Respondent’s computer system that tracks all of the ATMs
serviced by Respondent. The system keeps a record of all cash added or removed from the
machines, as well as, the denominations of the cash. The system also reports any overages or
shortages. Each morning, BAMS sends a daily email to designated individuals identifying any
variances over $500 that have been identified by the system. On December 6, 2012, the 40
BAMS system generated an email identifying all of the open variances that exceeded $500.
In addition to being sent to Garth Young, the email was sent to reconciliation clerks Jessica
Rosario and Trisha Cameau. The email also went to Scott Kaliski, who was an ATM manager
who had been brought into the facility during the aftermath of the storm to assist with the
operation of the facility. Tracy Williams; the manager of route logistics also received a copy 45
of the email. as well as Michael Foreman. Upon receiving the email, Foreman replied to
JD(ATL)–30–13
10
Rosario, Cameau, and Young telling them “I need to understand what is a true shortage.”
Foreman testified that he knew that Respondent’s operation was behind because of the
hurricane and he didn’t want to carry any losses or variances into the next business year.
Three days later, Rosario responded by email listing the variances and identifying those
variances that had been closed and those that continued as a “true” variance. Thirteen open 5
losses remained; seven relating to Global Cash Access, four for TD Bank, and one for First
Republic Bank, and one for Citibank.
On December 18, 2012, Respondent’s regional controller for the northeast; Bryan
Henry; sent an email to Respondent’s vice president of operations for the northeast, Bill 10
Vechiarella. Henry also copied various directors throughout the northeast operations,
including Foreman. Henry reported that there were 122 open preliminary loss reports (PLRs)
with a value of $395,583.62. He added, “Please review. Any open PLRs as of 12/31/12 will
be accrued.” Foeman testified that the Company’s goal at the end of the year is for all
directors to identify which claims are true losses and to pay those losses before going into the 15
next calendar year. After he received the email from Henry, Foreman sent an email to Young,
Rosario, and Cameau with the following directive: “Garth, We need your focus in ATM
claims ASAP.” Later that same day Vachiarella responded to Henry’s email by an email to
the various directors. Vachiarella responded: “TEAM, this is nuts. No way can we accrue
this. We need these resolved.”20
Foreman testified that when he reviewed the report that Rosario sent him on December
9, 2012, he noticed that there were some very large variances for Global Cash Access that
amounted to almost $40,000 and that he considered such losses to be substantial. He asked
Rosario to put together a chart so that he could understand the losses occurring at the casino. 25
Rosario testified that when Foreman asked him to prepare the spreadsheet concerning the
casino losses, he did not ask her to focus on any particular messenger. Using the folders that
she maintains concerning ongoing losses, Rosario prepared a spreadsheet for the losses related
to Global Cash Access. The spreadsheet included details concerning six losses that occurred
between March 2 and November 16, 2012. Four of the losses amounting to $27,400, 30
identified Francis as the messenger responsible for the route on the date of the loss or on the
day prior to the loss. Two of the losses totaling $19,500 that are identified on the spreadsheet
reflected that Francis was the messenger on both the day of the loss and on the day prior to the
loss.
35
On December 26, 2012 Foreman sent a copy of the spreadsheet to Senior Human
Resources Director Bryan Rosenthal and to Vechiarella. Foreman pointed out that on
September 7, 2012, Francis cross-loaded $100 bills in a $20-bill cassette, resulting in a
shortage of $15,520. Foreman added that Francis was the same messenger who had lost a
CompuSafe deposit the previous year causing a loss of $31,000. Foreman stated that based on 40
the shortages at the casino, the cross-load, Francis’ past losses, and his being late several days
with an attitude of “I don’t care if I’m late,” he had lost confidence in Francis’ ability to
perform his job. Foreman also added that Francis had been on vacation all week and there
had been no shortages. Foreman directed Rosenthal to prepare a termination letter to be given
to Francis when he returned from his vacation. Foreman copied Regional Security Manager 45
Michael Buckley in his email to Rosenthal.
JD(ATL)–30–13
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3. Buckley’s investigation of the losses
Buckley testified that he had been scheduled to come to the Brooklyn facility in early
January 2013 to address a report of a possible armed attack on one of Respondent’s trucks. 5
When Buckley read Foreman’s email of December 26, 2012, that discussed the losses and
Francis’ involvement, he responded by offering to assist in the investigation. On December
28, 2012, Buckley sent an email to Foreman and Rosenthal telling them that he wanted to
weigh in on Foreman’s December 26, 2012 email and to relay some facts of past history
concerning Francis. Buckley told them that he had read the various emails and he offered his 10
assistance in the investigation. He told them that he would like to review the history of the
casino shortages and thereafter interview the messengers involved, particularly Francis. He
went on to explain that he had interviewed Francis in the past concerning the July 2011 loss.
He explained that after his 2011 extensive video review and his interviews, he had not been
able to determine if Francis had stolen or not stolen the missing cash. On the same day, 15
Vechiarella responded to Buckley’s email and asked if Respondent could suspend Francis
pending investigation. Rosenthal responded that Francis could be removed from the schedule
until Buckley could interview him.
Buckley recalled that the first day that he had been at the Brooklyn facility in January20
2013; he spent all day investigating the matter of the possible armed attack. He told Foreman
that before he could begin any interviews concerning the casino losses, he needed to review
all the documentation on the investigation. He told Foreman that if the documentation could
be collected, he could review it before interviewing Francis on January 3.
25
Francis had been on vacation since December 17 and he expected to return to work on
December 31. He testified that although he attempted to reach the dispatch office on
December 30 and 31, 2012, no one answered the telephone. Because one of the offices
known as the Tarot office usually has the work schedule for the following workday, he also
telephoned the Tarot office to ask about when he was scheduled to return to work. He was 30
told that he was not on the schedule. After another unsuccessful call to the dispatch office on
January 2, he telephoned Supervisor Tracy Williams and asked about the date that he was
next scheduled to work. She suggested that he come to the facility during scheduled working
hours. Francis testified that he reported to the facility at 6:30 a.m. on January 3 and found
that he was scheduled for a special assignment at 10 a.m.35
When Buckley arrived at the facility, he discovered that Francis had arrived at the
facility early in the morning and he had been waiting since that time. Even though he didn’t
have all the documentation that he would have preferred, Buckley decided to go ahead and
talk with Francis rather than having Francis wait longer. Using a copy of the spreadsheet 40
prepared by Rosario, Buckley interviewed Francis. Buckley recalled that when he talked with
Francis about the various losses listed on the spreadsheet, Francis asked why he was being
questioned about these losses when no one had ever mentioned them to him before. Buckley
recalled that Francis also told him that he (Francis) had previously initiated a conversation
with reconciliation clerk Cameau about the casino losses. Francis asserted to Buckley that 45
Cameau told him that she had already reviewed all of the variances and they had balanced out
JD(ATL)–30–13
12
and that he should not worry about them. Buckley testified that Francis told him that Cameau
had assured him that there were no issues with the Global Cash ATMs. After meeting with
Buckley, Francis telephoned the Union’s attorney and told him about his meeting with
Buckley.
5
After speaking with Francis, Buckley interviewed Cameau and asked about her
conversation with Francis concerning the Global ATMs. Cameau told Buckley that she
recalled speaking with Francis about the Global ATM losses, but she denied that she ever told
him that there were no issues with the losses. Cameau told Buckley that she had told Francis
that she didn’t usually handle the Global ATM shortages and that Rosario usually handled 10
those shortages. Buckley testified that he also spoke with Rosario on January 3. Rosario told
him that she had spoken with Francis and employee Ruben Corchado concerning the issue of
the cross-load on their route.
Young testified that he had spoken with Francis and all the messengers about the 15
casino losses in 2012 because the losses were frequent and significant. Young described
Francis’ response as “a little nonchalant to say the least.” Buckley also spoke with Young on
January 3. Buckley testified that Young told him that he had spoken with Francis many times
about the losses. Buckley further recalled that Young mentioned that when he had spoken
with Francis, Francis had a nonchalant attitude about the issues discussed. 20
At 6:09 p.m. on January 3, Buckley sent an email to Rosenthal, Vechiarella, and
Foreman concerning his investigation of the ATM shortages. He confirmed that he had
spoken with Francis, Cameau, Rosario, and Young and he recounted the information provided
by each individual. Buckley also added that his other contacts that day contradicted the 25
information given to him by Francis that morning. Buckley further noted that he felt that
Francis was being misleading and evasive during the interview. Buckley added that he was
providing the information for whatever action that was deemed appropriate.
4. The Union’s letter30
At 7:35 p.m. on January 3, 2013, David I. Cann (Cann); the Union’s attorney, faxed a
letter to Respondent’s Brooklyn facility. The letter was addressed to Foreman and informed
him that his law firm represented the Union. Cann stated that the Union was engaged in an
organizing campaign at several of Respondent’s facilities in the New York metropolitan area. 35
Cann included in the letter that employees Frank Esammason, Al White, Marvin Francis, and
Frank Cangemi had formed a committee for the purpose of organizing a labor union and
engaging in collective bargaining. Cann further stated in the letter that any retaliation against
Francis or any members of the committee was prohibited by law and would result in charges
with the National Labor Relations Board. 40
Buckley returned to his office in Boston on January 4, 2013. Buckley noted in his
records that he spoke with Foreman at approximately 5:30 p.m. on January 4. Foreman told
him that after Buckley had left the facility the previous day, Foreman had received a faxed
letter from an attorney representing the Union and advising Respondent to stop harassing 45
certain individuals. Francis was named as one of the individuals listed in the letter. Buckley
JD(ATL)–30–13
13
testified that this was the first time that he had heard that Francis was involved with the
Union. In his notes, Buckley documented that he told Foreman that during his conversation
with Francis on January 3, neither the word “union” nor any other activity concerning union
campaigns was ever mentioned.
5
5. Respondent’s decision to terminate Francis
Buckley recalled that he returned to the Brooklyn facility sometime between January
10 and 15. Over the course of several days, Buckley reviewed all the paperwork concerning
the losses and he also spoke at length with Rosario. He testified that he did so because he 10
didn’t consider himself an expert in understanding the ATM documentation and he needed
Rosario to explain the ATM operation. Rosario explained to him that the preprinted SL1’s are
not always accurate and often the assignments are changed after the forms are printed.
Buckley testified that after his research, he concluded that Francis was the common
denominator in the loss issues. He said that based on that conclusion, as well as on Francis’ 15
lack of candor and misleading comments on January 3, he concluded that Francis was not
being truthful. He told Foreman that he didn’t see how Respondent could have confidence in
Francis in his continued functions at Respondent’s facility. Foreman testified that based on
Buckley’s investigation, he decided to terminate Francis. Foreman denied that he had any
knowledge of Francis’ involvement with the Union prior to getting the faxed letter on the 20
evening of January 3.
By letter dated January 16, 2013, Foreman notified Francis of his termination. In the
letter, Foreman told Francis that he had been the messenger responsible for an ATM cross-
load which had resulted in a loss over $13,000. Foreman also explained that there were three 25
other ATM shortages in 2012 for a total loss of over $10,000 occurring from machines that
Francis was assigned. Foreman stated that as a result of these findings, he had lost confidence
in Francis’ ability to discharge the duties of his position in a manner consistent with the level
of performance, proficiency, and care expected by Brink’s.
30
6. Rosario’s spreadsheet and the losses associated with Francis
a. The June 1, 2012 loss
One of the losses shown on Rosario’s chart was a June 1, 2012 loss for $2900 at 35
Global Cash Access for ATM No. 22 (x022nyrw.) The SL1 for this ATM for May 28, 2012,
shows Olivera and Maysonet’s names preprinted as the driver and the messenger respectively.
The guide sheet for May 28, 2012 for the casino route contains the handwritten names of the
employees who serviced the route. Maysonet is written into the space for the messenger, the
name Olivera is written into the space for the driver, and Francis is the name written into the 40
line designating the guard. Because the guard serves as a second messenger, Rosario testified
that either Maysonet or Francis could have serviced the ATM on May 28. Francis testified
that he did not complete any of the information that is included on the May 28, 2012 guide
sheet.
45
JD(ATL)–30–13
14
The SL1 for this same ATM for June 1, 2012, shows that Olivera's name is preprinted
as the driver and Maysonet's name is preprinted as the messenger. Maysonet's name,
however, is marked through and Francis' name is handwritten on the form. Francis testified
that he did not write his name in the section identifying him as the messenger and he does not
know who did so. He contends that he did not complete anything contained on the SL1 for 5
June 1, 2012. The SL1 also reflects that the lead messenger documented a shortage for the
ATM of $2900. The guide sheet for June 1, 2012, contains the handwritten names for the
messenger, driver, and guard for route 14. The name of the messenger is handwritten as Jerry
L. This individual is identified in the record as Jerry Lewis. The driver is designated as
Olivera, and the guard is designated as Francis. Francis denies that he serviced Global ATM 10
X022NY on May 28, 2012 or on June 1, 2012.
Francis denies that he wrote anything on the guide sheet or SL1 for either May 28 or
June 1 and he denies that he was on the route either day. The guide sheet for May 28 reflects,
however, that Francis was the second messenger and both the SL1 and the guide sheet for 15
June 1 reflect that Francis was a messenger on the route. Rosario testified that when she
prepared the spreadsheet on casino losses for Foreman, she listed Francis as the messenger on
the date of the loss and noted that either Francis or Maysonet was the messenger on the day
before the loss was discovered.
20
b. The September 7, 2012 loss
The largest of the losses included on Rosario’s spreadsheet was a loss of $15,520 at
ATM No. 12 (x012nyrw) on September 7, 2012. Rosario testified that the loss resulted when
$100-notes were erroneously loaded into a $20-cassette, causing the machine to over dispense 25
to customers. Global Cash Access demanded a reimbursement of $13,000 because of the
cross-load. Rosario testified that when a cross-load occurs, she looks to the crew that serviced
the ATM on the date prior to the loss because that would have been the crew who made the
error in loading the cash into the ATM.
30
The SL1 for Global ATM No. 12 for September 3, 2012 contains the names of the
driver and messenger preprinted on the form. Olivera’s name is pre-printed as the driver and
Maysonet’s name is pre-printed as the messenger. The guide sheet for Route 14 on
September 3, 2012, shows the handwritten names of the messenger, driver, and guard.
Francis is shown as the messenger, Jamal B. is handwritten as the driver, and Kevin Gordon35
(Gordon) is shown as the guard. Rosario testified that even though Maysonet’s name had
been preprinted on the SL1 for September 3, 2012, the guide sheet reflects that Maysonet did
not service the ATM on September 3. Francis testified that because he was familiar with the
location of the ATMs on this route, he took charge as the lead messenger and that he took
responsibility for servicing the upper part of the machine and Kevin Gordon serviced the 40
bottom half; including servicing the cash for the machine. Francis denied that he ever handled
the cash that was removed or put into the Global ATM No. 12 on September 3, 2012. Francis
admitted, however, that he did not know whether Gordon was qualified to service the ATMs.
He also admitted that neither Gordon nor Jamal usually worked the casino route.
45
JD(ATL)–30–13
15
The SL1 for ATM No. 12 for September 7, 2012, contains the preprinted name for the
driver and messenger. Olivera’s name is pre-printed as the driver and Maysonet’s name is
pre-printed as the messenger. Maysonet's name, however, is marked through and Francis'
name is handwritten in the space designating the messenger. Francis denies that he wrote his
name on the SL1 or that he completed any portion of the SL1 for September 7. Furthermore, 5
he denies that he serviced this particular ATM on that date.
Rosario testified that when she prepared the spreadsheet she listed Francis as the
messenger on both the date of the loss and the date before the loss. She explained that she did
so because she relied on the guide sheet as the more accurate document for the date before the 10
loss. She also relied on the fact that the SL1 form for the day of the loss reflected that
Maysonet’s name had been marked through and Francis’ name was handwritten in
substitution for Maysonet’s preprinted name.
c. The October 8, 2012 loss15
Global Cash Access reported a shortage of $3,980 for a loss that occurred between
October 5 and 9, 2012 for ATM No. 12 (x012nyrw) and demanded reimburse. The SL1 for
this ATM for October 5, 2012 contains the preprinted names of the driver as Olivera and the
preprinted name of Maysonet as the messenger. Maysonet’s name, however, is marked 20
through and Francis' name is handwritten in the section designating the messenger. Rosario
concluded that because Francis’ name was handwritten on the SL1, Francis was the person
who physically loaded the ATM on that date. Francis denies that he wrote his name on this
document or that he completed any portion of the document. Furthermore, Francis denies that
he serviced Global ATM No. 12 on October 5, 2012. The guide sheet for October 5, 2012 for 25
route 14 contains the handwritten names for the messenger, driver, and guard. Francis is
shown as the messenger, Olivera and Francis are both listed as the driver, and D. Natal is
listed as the guard. Francis recalls that he completed the guide sheet for October 5, 2012. He
testified that he listed both he and Olivera as drivers because he drove part of the route.
Francis was asked to compare the guide sheet for October 5 and the SL1 for ATM No. 12 for 30
October 5, 2012 and to clarify who was the messenger who serviced the ATM. Francis
asserted that he did not service the ATM because his name on the SL1 was not his
handwriting. Francis further asserted that a driver never handles the cash, and thus Natal must
have been the messenger who handled the cash and serviced the ATM. Rosario testified that
when she compared the writing on the SL1 and the guide sheet for October 5, she concluded 35
that Francis was the messenger.
The SL1 for No. 12 for October 8, 2012 contains the preprinted names of Olivera as
the driver and Maysonet as the messenger. The document also reflects that the messenger
documented a shortage of $3980 when the ATM was serviced. Francis denies that he 40
serviced this ATM on October 8. The guide sheet for October 8 shows Maysonet as the
messenger and Corchado as the guard. Robinson is shown as the driver.
JD(ATL)–30–13
16
d. The November 16, 2012 loss
The SL1 for Global ATM No. 18 (xo18nyrw) for November 12, 2012 contains the
preprinted names of Olivera as the driver and Maysonet as the messenger. Maysonet's name,
however, is marked through and Francis name is handwritten into the space designated for the 5
messenger. Francis acknowledges that he wrote his own name as messenger on this form and
he was the individual who serviced the ATM.
The SL1 for ATM No. 18 for November 16, 2012 contains the preprinted name of
Olivera as the driver and Maysonet as the messenger. Maysonet's name is marked through 10
and Corchado’s name is handwritten into the space designated as the messenger. The form
also reflects that the messenger documented a shortage of $4,660 at the time the ATM was
serviced. Francis denied that he serviced the ATM on November 16, 2012. Based on her
review of the documents, Rosario determined that Francis was the messenger responsible for
servicing the ATM in question on the date prior to the date of the $4,660 variance. 15
D. Francis' Involvement with the Union
1. Frank Esammason’s role with the Union
20
Frank Esammason (Esammason) was first employed with Respondent in October 1994
where he worked at Respondent's Brooklyn facility. In 2006, he transferred to BGS’ JFK
airport facility. Esammason currently works as a messenger/carrier. In 2012 and during the
early part of 2013, Esammason's job required him to stop at the Brooklyn facility
approximately 5 days a week. He picked up money or valuables that were to be transported to 25
the JFK facility. He usually arrived at the Brooklyn facility between 5 and 5:30 p.m. and he
spent no more than 10 to 15 minutes at the facility.
Esammason and fellow BGS employee Al White were the employees of BGS who
created the Union. Esammason testified that first began thinking about starting a union in 30
June 2012 and he shared his ideas with White in July 2012. Esammason recalled that he
attended a meeting at the JFK facility in September 2012 that was conducted by JFK Branch
Manager Tony Turrado. He also recalled that the regional or general manager for BGS and a
regional human resource manager for BGS were present at the meeting. He could recall only
that their first names were Dominic and Lesley. He recalled that Dominic introduced himself 35
as Turrado's superior. Employee complaints and issues were discussed during the meeting.
Dominic also mentioned that there were rumors about union organizing at the facility.
Esammason asserts that he told Dominic that employees were looking into organizing a union
because of the employee complaints and issues involving wages and pensions. In response to
Esammason's statement, Dominic stated that employees had the right to do so. He also 40
recalled that Lesley stated that she dealt with different unions in her job and she also said that
the employees had a right to organize. Esammason recalled that Turrado had simply listened
and did not have anything in particular to add.
Esammason testified that in late November or early December, he went to the 45
Brooklyn facility with White and other co-workers and tried to speak with Respondent’s
JD(ATL)–30–13
17
employees outside the entrance gate. He estimated that they did so between 5:00 a.m. and
7:00 a.m. Esammason recalled that on one occasion when he was standing outside the gate, he
saw Foreman and Human Resource Manager Brian Rosenthal. Rosenthal approached him and
asked how he was doing. He also told Esammason that he could not block the gate.
Esammason told him that he was not blocking the gate and Rosenthal said nothing further. 5
Esammason asserts that he continued to distribute union literature after the exchange.
Esammason testified that Francis joined him in the parking lot approximately an hour after the
conversation with Rosenthal. Esammason did not testify as to how long Francis remained in
the parking lot or whether any other management officials were present during the time that
Francis came to the parking lot. Esammason asserts that he continued to distribute union 10
literature in the parking lot outside the Brooklyn facility twice a week until the February 2013
election.
Esammason testified that he first began talking with Francis about the Union in June
or July 2012. He estimated that within 2 weeks of first talking with White about the Union, 15
he spoke with Francis every day and that he saw Francis at the Brooklyn facility two to three
times a week. Francis, however, testified that he first began talking with Esammason about
the Union in September and October of 2012. Francis testified that they not only spoke by
telephone and text, but that they also met in person at a restaurant in Queens New York.
Employee Al White, another employee at the JFK facility, and Attorney David Cann were 20
also present during some of the meetings at the restaurant. Francis recalled that there were a
total of 3 or 4 of these meetings that occurred during a period of time between October and
December 2012. Francis also recalled that another employee of the Brooklyn facility also
attended. He did not specify how many meetings that this employee attended and he could
only recall that his first name is Frank.25
Francis testified that he usually saw Esammason approximately once a week when
Esammason came to the Brooklyn facility to make deliveries. He recalled that when he spoke
with Esammason, he did so while on the platform as well as in the restroom. The platform is
the area where the trucks back in for loading or unloading. During the morning hours, 30
supervisors and messengers are the individuals who are primarily on the platform.
Messengers and night loaders are the individuals who are primarily on the platform during the
afternoons. Security cameras are located directly above the platform. Francis asserted that
each time he saw him, Esammason asked about the status of the organizing. He recalled that
when he spoke with Esammason on the platform, he only spoke for 1 to 3 minutes and simply 35
greeted him and exchanged a few words.
Francis also testified that he first saw Esammason distributing union flyers on 10th
street outside the facility and near the parking lot “in or around October.” Francis asserted
that between October and December, he helped Esammason distribute union flyers in this area 40
three to five times. Francis testified that there were times when he did this in the morning
between 6 a.m. and 8 a.m. and other times after work and between 5:30 to 7:30 p.m. On
cross-examination, Francis admitted that he did not recall the dates when he distributed union
literature and that his earlier testimony had been only an estimate as to how many times he
had distributed union literature. He acknowledged that he had no recall of any specific dates 45
other than January 17, 2013 and after his suspension.
JD(ATL)–30–13
18
Francis asserted that before he began talking with Esammason about the Union, he
seldom saw Young outside on the platform area in the afternoon. He acknowledged,
however, that Young's office and the platform are on the same level and that there is a
window in Young's office giving a view of the platform. He asserted that in October 2012 5
and while he was on the platform talking with Esammason one afternoon, Young told him to
stop socializing and go ahead and check off his route and go home. Francis also recalled that
there were other times when he spoke with Esammason on the platform and Young stopped
and asked Francis and Esammason if they needed any help with anything. Francis further
asserted there were occasions when Young stared at him from a distance of 25 to 30 feet. 10
Francis testified that he saw Young look at him in this way every time that Esammason came
to the facility. Francis also testified that before there was any discussion about the Union, he
had been friends with Young. He asserted that after he became involved with the Union,
Young no longer offered him a ride home from work and that Young looked at him
differently.15
Francis testified that even before there was any discussion of the Union, he had been
friends with Esammason and that he occasionally spoke with Esammason when he visited the
Brooklyn facility. Francis also asserted that before he began having discussions with
Esammason about the Union, he never saw Forman on the platform in the afternoons. Francis 20
asserted that after he began talking with Esammason about the Union, Forman's presence
"was very evident." He estimated that after he began talking with Esammason about the
union, he observed either Forman or Young on the platform each afternoon. Esammason also
testified that after his meeting with Turrado in September 2012, he observed Foreman on the
platform more often than before. Esammason testified, however, that Foreman was never 25
close enough to overhear any conversations that he had with Francis.
2. Francis' contact with other employees
Francis testified that he began talking with other employees about the Union in 30
September or October 2012. He did not give any specific names, but asserted that he talked
about the Union with truckers, night loaders, as well as, employees in the cash processing
department. He testified that he did so on the platform, as well as in the breakroom, the
parking lot, and the locker room. He recalled that he approached employees individually and
primarily after working hours. He estimated that spoke with a total of approximately 80 35
employees.
Esammason testified that he first gave Francis union authorization cards to distribute
in mid-October and that Francis returned the signed cards to him within a week to 2 weeks.
Esammason asserted that after he gave the union cards to Francis, he saw Foreman more40
frequently when he visited the Brooklyn facility. Francis, however, testified that Esammason
first gave him union cards to distribute in November 2012 and he began immediately
distributing the cards to employees. Francis acknowledged that in the affidavit given to the
Board, he testified that Esammason gave him approximately 100 union cards on November
30, 2012. Francis' union authorization card is dated December 1, 2012; however, he did not 45
sign the card on December 1. He asserted that he did not immediately sign a card and that
JD(ATL)–30–13
19
Esammason reminded him in a meeting that he had not as yet signed a card. Francis testified
that he wrote December 1, 2012 on the card because he estimated that this is the date that he
“should” have signed the card.
Francis testified that he gave union cards to employees in the gym and on the 5
platform; areas that were covered by the facility cameras. He also recalled that he gave
employees union cards in the male locker room, the breakroom, and the parking lot. Francis
testified that the Tarot office at the facility contains the live feed from cameras filming areas
in the parking lot, the front of the building, the lobby area, the locker room and the computer
room. Respondent stipulated that Forman has been in and out of the Tarot office every day 10
since he worked at the Brooklyn facility and particularly during the month of November.
Respondent further stipulated that after Hurricane Sandy, Forman was in the Tarot office
virtually every hour because of the effects of the hurricane on the facility.
Francis testified that he collected approximately 50 union authorization cards from 15
other employees over a period of approximately two months between October and December.
He recalled that on December 15, 2012, employee Tameka Grant saw him talking with
another employee about signing a union card. During the conversation, some of the union
cards fell to the floor. Francis testified that Grant picked up one of the cards and he pulled it
from her hand. He recalled that Grant told him “Ooh, I'm telling. You're going to get in 20
trouble.” Francis testified that he had picked up the cards that had fallen and he made his way
to the bathroom with his “heart pounding.”
Francis asserts that at the time of this conversation, Grant worked as Young's assistant
during the week and as a dispatcher on Saturday's. Francis testified that her work area was 25
near to Young's and he believed that they were friends.
Francis was on vacation from December 17until December 31, 2012. Francis testified
that twice during this period, he went to the Brooklyn facility with Esammason and stood
outside the facility and handed out union materials to individuals coming to work. He 30
estimated that they did so between 6 a.m. and 7 to 7:30 a.m. Esammason recalled, however,
that in late November or early December Francis assisted him in contacting employees
outside the facility and during the morning between 5 and 7 a.m. Esammason estimated that
prior to the filing of the petition, Francis assisted him in the parking lot at least twice a week.
35
3. Tracy Williams' testimony concerning the losses
Tracy Williams (Williams) first began working for Respondent in March 2000 as a
processing teller in the currency room. She progressed to the position of assistant supervisor
and then to the position of cash room supervisor. In December 2011, Williams transferred to 40
the CIT department where she worked as a route logistics manager. Williams testified that
she was the immediate supervisor for 16 employees and assisted with the management of 40
to 42 employees over the course of a workday.
Williams was terminated from her employment in May 2013. She was told that she 45
was terminated because Respondent had lost confidence in her ability to perform her job and
JD(ATL)–30–13
20
to resolve employee conflicts. Williams contended, however, that she believed that she was
terminated because of a disagreement with employee Tamika Grant; who was a friend of
Young.
Williams testified that in December 2012, she became aware that Respondent was 5
looking into shortages that were attributed to Francis. Jessica Rosario asked Williams to help
her look for SL1 forms that reflected shortages associated with Francis. Williams testified
that she understood that they were looking for the forms because a casino customer had a
large variance. Williams testified that although Rosario had found some of the documents
relating to Francis and the losses, she (Williams) found an additional four documents on her 10
own. She recalled that the losses associated with Francis were “pretty large” as well as other
smaller amounts. Williams also recalled that as they were sorting out the SL1’s associated
with the shortages, “the amount [they] kept accruing.”
4. Williams' testimony concerning Francis' union activity15
Williams testified that she first began hearing rumors about union organizing in
October and she also heard rumors that BGS employees Esammason and White were involved
with the organizing. Williams began attending daily managers' meetings in October 2012.
She recalled that in November there were daily discussions about the Union during the 20
managers’ meetings.
Williams testified that on an unspecified date in January, and after Francis' suspension,
she happened to see Francis outside the facility at approximately 5:00 a.m. She saw him
standing by the gate entrance with another man but she didn't know what he was doing. She 25
recalled that she made a comment to Young “Wow, that's a bold move. The guy is actually
forming a union against the company.” Young responded “Yeah, I know. Francis has a lot of
nerve doing something like that after everything I've done for him.”
When Williams was asked on direct examination when she first heard about Francis' 30
connection to the Union, she testified that it had been the end of November or December. She
acknowledged, however, that in the sworn affidavit given during the Board's investigation,
she testified that she did not officially learn of Francis’ involvement with the Union until after
his discharge. She explained that by “official” she did not hear any mention of Francis' union
activity from Forman or Young until after Francis' discharge. She admitted that she had no 35
knowledge of Francis' union activity before his discharge.
E. Respondent’s Discipline of Other Employees
Respondent asserts that its termination of Francis is consistent with its past practice in 40
terminating other employees for similar reasons. In October 2010, Respondent terminated R.
Mendoza because of a repeated loss of liability. Respondent determined that Mendoza was
the messenger responsible for the safekeeping and security of three customer shipments on
August 27, September 8 and September 15, 2010 which all resulted in shortages for a total of
$14,860. In January 2011, Respondent terminated the employment of A. Serrano after an 45
investigation that showed that Serrano was the messenger responsible for a high number of
JD(ATL)–30–13
21
ATM shortages during the 2010 calendar year. In April 2012, Respondent terminated J. Diaz
after he was identified as the messenger responsible for a series of customer claims and
losses. Buckley testified that he was involved in the investigations involving both Mendoza
and Serrano and he made recommendations to Foreman concerning his investigation. He also
recalled that during the course of his investigation, he reviewed spreadsheets containing 5
information on losses similar to those he reviewed in January 2013.
Records introduced during the hearing also reflect that on February 11, 2010,
Respondent terminated employee P. Gallardo for ATM cash shortages totaling $2,751 and on
January 13, 2012, Respondent terminated employee C. Thomas for shortages totaling $3,960. 10
F. Analysis and Discussion
1. Legal authority
15
Counsel for the General Counsel asserts that Respondent terminated Marvin Francis
because of his activities in support of the Union. Respondent contends, however, that because
Francis was associated with various and specific losses, it lost confidence in his ability to
perform his job and therefore he was terminated. Respondent asserts that it had no knowledge
that Francis was involved in union activity before a decision was made to terminate him. 20
Because the Respondent’s motive is an integral factor in determining the lawfulness of
Francis’ discharge, it is necessary to use what has come to be known as a Wright Line4
analysis. The Wright Line analysis is based on the legal principle that an employer’s
motivation must be established as a precondition to finding an 8(a)(3) violation. American
Gardens Management Co., 338 NLRB 644, 645 (2002). In its decision in Wright Line, the 25
Board stated that it would first require the General Counsel to make an initial “showing
sufficient to support the inference that protected conduct was a ‘motivating factor’ in the
employer’s decision.” Wright Line above at 1089.
Under Wright Line, the General Counsel must establish certain elements by a 30
preponderance of the evidence. The General Counsel must show the existence of activity
protected by the Act and that the respondent was aware that the employee had engaged in
such protected activity. In addition to showing that the employee in question suffered an
adverse employment action, there must be some showing that the employer bore animus
toward the employee’s protected activity. Praxair Distribution, 357 NLRB No. 91, slip op. at 35
____ fn. 2 (2011); Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 4 (2011).
Specifically, the General Counsel must show that the protected activities were a substantial or
motivating factor in the decision to take the adverse employment action. North Hills Office
Services, 346 NLRB 1099, 1100 (2006). In effect, proving the established elements of the
Wright Line analysis creates a presumption that the adverse employment action violated the 40
Act. To rebut such a presumption, the respondent must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the protected

4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st. Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–
–403 (1983).
JD(ATL)–30–13
22
activity. Manno Electric, 321 NLRB 278, 281 (1996). If the evidence establishes that the
reasons given for the discipline are pretextual, either in that they are false or not relied on, the
employer has failed to show that it would have taken the same action absent the protected
conduct, and there is no need to perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981). 5
Furthermore, an employer cannot carry its Wright Line burden by showing that it had a
legitimate reason for the action, but must “persuade” that the action would have taken place
even absent the protected conduct. Centre Property Management, 277 NLRB 1376 (1985);
Roure Betrand Dupont, 271 NLRB 443 (1984).
10
2. Analysis of the Wright Line components
a. Whether Francis engaged in union activity
There is no dispute that Francis signed a union authorization card that is dated15
December 1, 2012, authorizing the Union to represent him for the purposes of collective
bargaining to improve wages, benefits, and working conditions. Francis also asserts that he
collected union authorization cards from other employees and that he assisted Esammason in
distributing union materials to employees outside Respondent’s facility. Clearly, by signing
the union authorization card, Francis engaged in an activity in support of the Union and in an 20
activity that is protected by Section 7 of the Act. Although no employees were submitted to
support his assertions, I also credit his testimony that he talked with other employees about
signing cards. In this respect, he also engaged in union activity. As discussed below,
however, Francis’ alleged open solicitation of support for the Union outside the Respondent’s
facility and his alleged visible assistance to Esammason is not as clear from the record 25
evidence as the General Counsel maintains.
b. Whether Respondent knew of Francis’ union activity prior to January 3, 2013
On January 3, 2013, the Union’s attorney faxed a letter to Respondent, notifying 30
Respondent that Francis was involved in organizational activities. Clearly, as of this date,
Respondent was on notice that Francis was engaged in protected activity and Respondent’s
actions thereafter would bear the scrutiny beyond the second prong of the Wright Line
analysis. The General Counsel asserts, however, that even prior to January 3, 2013,
Respondent would have known that Francis was engaged in union activity. As outlined in my35
discussion below, I am not convinced that Respondent would have known about Francis’
union activity prior to January 3, 2013.
There is no doubt that even prior to January 3, 2013, Respondent was probably aware
that Esammason was involved in organizing for the Union. Esammason testified that as early 40
as September 2012, he informed management at the BGS JFK facility that he was looking
into organizing a union. Although Respondent may have known that Esammason was
involved in union organizing, the evidence is not as clear with respect to Francis. There is no
dispute that even before he became involved in the union organizing, Esammason’s job took
him to the Brooklyn facility approximately 5 days a week. Admittedly, his contact with the 45
Brooklyn branch employees during these visits was limited to no longer than 10 to 15
JD(ATL)–30–13
23
minutes. There is no evidence that this practice changed after he began union organizing.
Although Francis and Esammason contends that they saw Foreman and Young more often on
the docks in the late afternoon after Esammason became involved in the Union, there is no
evidence that Esammason spoke more with Francis than with other employees when he was
there for the brief period of 10 to 15 minutes or that Foreman or Young overheard any 5
comments that were exchanged between Esammason and Francis. Francis testified that when
he and Esammason spoke, they only did so for one to three minutes and there was only a brief
exchange of words.
Esammason testified that in late November or early December, he and Al White went 10
to Respondent’s Brooklyn facility and tried to talk with employees outside the facility gate
during the early morning hours. He estimated that they did so approximately twice a week
until the election in February 2013. He recalled that on one occasion, Rosenthal saw him and
told him that he could not block the gate. Rosenthal did not dispute that he had this
conversation with Esammason. This is the only conversation that is alleged to have occurred 15
between Esammason and any of the management officials of the Brooklyn facility with regard
to his union activity. Esammason also testified that approximately an hour after he had the
conversation with Rosenthal, Francis came out to the parking lot and joined him. There is no
evidence that Rosenthal or any other management official observed Francis in doing so.
Initially Francis estimated that between October and December, he distributed union materials 20
outside the gate of Respondent’s facility two to five times. He later testified, however, that he
did know when he first distributed union materials outside the facility. He testified that the
only date that he knew with certainty was January 17, 2013, and after his discharge.
Esammason testified that Francis assisted him in distributing union literature outside the
facility approximately twice a week until after the election. Based on the conflicting 25
testimony between Esammason and Francis and the lack of corroborating evidence, I do not
find Esammason's testimony to be credible with respect to Francis’ alleged assistance to
Esammason in distributing union literature. Based on the record as a whole, it is more likely
that Esammason exaggerated the extent to which Francis attempted to assist him in organizing
efforts. 30
Both Esammason and Francis testified concerning the time period when the Brooklyn
employees were solicited to sign union authorization cards and the extent to which Francis
was involved in that solicitation. Esammason testified that he first gave Francis union cards
to distribute in mid-October and that Francis returned the cards to him within 2 weeks. 35
Francis, however, initially testified that he collected 50 union cards from employees between
October and December 2012. In direct contrast to Esammason’s testimony, Francis later
testified that Esammason gave him the union cards in November 2012. In the affidavit given
by Francis to the Board during the investigation, Francis testified that Esammason gave him
100 union cards to distribute on November 30, 2012. Francis finally testified that he could 40
not recall the time period when he began distributing union cards.
There is no dispute that Francis dated his own union authorization card with a
December 1, 2012 date. During cross examination, Respondent’s counsel asked Francis why
he signed his own card on December 1 and yet he asserted that he had solicited others to sign 45
cards in October 2012. Francis contended that his signing the card with a date of December 1
JD(ATL)–30–13
24
was only after Esammason reminded him that he had not signed a card as yet. Francis
asserted that he put the December 1, 2012 date on the card because he was estimating that this
was the date that he “should” have signed the card. Francis does not deny that he signed the
union card sometime after December 1, 2012. Esammason denied, however, that he ever
suggested to Francis that he should backdate the card to a date earlier than when he signed it. 5
Thus, Francis contends that he solicited employees to sign union cards as early as October and
yet he acknowledges that he did not receive the union authorization cards from Esammason
until November 30, 2012 and that he did not sign his own union card until sometime after
December 1, 2012. Furthermore, Esammason’s testimony that Francis returned 50 signed
cards to Esammason during the latter 2 weeks of October is directly contradicted by Francis. 10
Ironically, Respondent subpoenaed the Union’s signed authorization cards during the course
of this proceeding and the General Counsel opposed the production. After hearing the parties’
arguments, I granted the General Counsel’s motion to quash the subpoena and therefore there
is no documentary evidence to substantiate when the employees signed union cards.
Furthermore, there is no evidence to support either Esammason’s testimony or Francis’ 15
testimony or to credibly establish when Francis actually signed his own union card or when he
solicited others to do so.
In the posthearing brief, the General Counsel acknowledges that there are
discrepancies between Francis and Esammason concerning the dates on which they engaged 20
in certain union activity. The General Counsel asserts, however, that such differences are
minor and that their testimony was consistent on critical issues. Contrary to the General
Counsel’s assertion, however, I find the differences far more significant. In order to
effectively argue that the Respondent would have reasonably known about Francis’ union
activity prior to January 3, 2013, the evidence must demonstrate that Francis was actively 25
involved in union activity prior to that date. Esammason asserts that Francis solicited and
collected union authorization cards during the last two weeks in October while Francis
contends that he did not receive any union cards until November 30, 2012. Francis never
identified when he actually signed his own union card. He simply asserts that he back-dated
the card to December 1, 2012 because he thought that was the date that he “should” have 30
signed it. Thus, based on the testimony of Francis and Esammason, there is no clear evidence
to show when Francis solicited employees to sign union cards or when he assisted
Esammason in distributing union materials. January 17, 2013 is the only date that Francis can
recall with certainty as a date when he distributed union materials to employees outside the
facility. In light of the conflicting testimony of Francis and Esammason, there is in fact no 35
credible evidence to actually demonstrate that Francis signed a union card prior to the Union’s
letter of January 3.
As discussed above, Francis estimated that he assisted Esammason in distributing
union materials outside the facility two to five times during the period between October and 40
December 2012. Esammason testified that Francis helped him distribute union literature
twice a week in the parking lot and that he did so until the election. Francis also testified that
on December 15, 2012, employee Tameka Grant saw him talking with another employee
about signing a union card. Francis asserts that during the conversation, he accidentally
dropped the cards and Grant picked up one of the cards and commented on the fact that it was 45
a union card. Francis testified that because Grant sometimes worked as Young’s assistant, he
JD(ATL)–30–13
25
had been nervous that Grant had seen him with the cards. He recalled that when he was able
to collect the cards that he had dropped, he immediately headed for the bathroom with his
heart pounding. I note, however, that his testimony concerning his nervousness about Grant
seeing the union cards conflicts with his assertion that he openly distributed union materials to
employees during the period from October to December. If he had actively and openly 5
distributed the union materials as he and Esammason asserts, it should not have been a matter
of concern on December 15, 2012, that an employee might tell Young that he was handing out
union authorization cards.
In asserting that Respondent had knowledge of Francis’ union activity prior to January 10
3, 2013, the General Counsel also relies on Francis’ testimony concerning his conversation
with fellow employee Ruben Corchado. Francis testified that on an unspecified date, he
approached Corchado about signing a union authorization card. Corchado told Francis that he
didn’t believe that a union was going to work and he declined the card. Following his
conversation with Corchado, Francis went to Young’s office to get a new pair of pants 15
because his uniform pants had ripped. The new pair of pants that Young gave him did not fit
and he had to ask for another pair of pants from Young. In the interim of trying on the pants,
Francis observed Corchado speaking with Young. He did not overhear their conversation.
When Francis asked Young for the second pair of pants, Young tossed them to him rather
than handing them to Francis. After trying on the second pair of pants, Francis approached 20
Corchado and said, “You told them, didn’t you?” Corchado just laughed and said that he did
not know what Francis was talking about. Francis testified that Corchado never said anything
further. Young denied that Corchado or any other employee ever told him that Francis was
involved in union organizing. Although Francis apparently believed that Corchado talked
with Young about his solicitation to sign the union card, there is nothing more than Francis’ 25
speculation to support this assertion.
The record evidence that puts Respondent’s knowledge most in question was
presented through the testimony of Tracy Williams, a former supervisor who was presented
by the General Counsel. After having served as a member of Respondent’s management30
team, Williams was terminated in May 2013. Based on her testimony, it is apparent that she
does not believe that her termination was justified. Williams testified that she first began
hearing rumors about union organizing as early as October 2012. She testified that during
November 2012, there were daily discussions about the Union during the management
meetings that she attended. It is reasonable that management would have had these 35
discussions at that time as Esammason had already proclaimed his union organizational
activities to the management officials at the JFK facility and he may have been soliciting
employees outside Respondent’s premises.
Although Williams initially testified that she learned of Francis’ union activity 40
“around December” she later admitted that in a sworn affidavit to the Board she had testified
that she had heard about Francis’ connection to the Union only after she sent Francis’ resume
in for a new position as a tech in January. Thus, in her sworn affidavit to the Board during the
investigation, as well as in her sworn testimony at the hearing, Williams admitted that she had
not known that Francis was involved with the union organizing until after his discharge. She 45
testified that she had not heard any mention of Francis’ union activity from either Foreman or
JD(ATL)–30–13
26
Young. I find Williams’ testimony to be far more credible than Francis and Esammason in
this regard and to credibly contradict their testimony concerning the timing of Francis’
assistance to Esammason in distributing union literature outside Respondent’s facility.
Based on her testimony, it is apparent that Williams believed that her termination was 5
not justified. A terminated employee having this opinion might not normally feel any
obligation of loyalty to his or her former employer. It is reasonable that she might have
welcomed the opportunity to present testimony adverse to the Respondent’s position. The
fact that her testimony supports the Respondent’s position gives her testimony more
credibility. If management officials discussed the union organizing each day in their 10
management meetings during the months after October 2012, it is plausible that they would
have also discussed any employees who were thought to be involved in the organizing. If
Francis’ name was not mentioned, it is most likely because he was not known to be associated
with the organizing effort. Thus, Williams’ testimony supports a finding that Respondent was
not aware of Francis’ support for the Union prior to January 3, 2013. 15
Accordingly, I do not doubt that Francis believes that he engaged in activities in
support of the Union’s organizing efforts. At some undetermined point in time, he signed a
card and he demonstrated his support for the Union outside the facility on January 17, 2013
after his suspension. The record demonstrates, however, that prior to January 3, 2013, Francis20
was not an open and visible supporter of the Union. There is simply a lack of credible
evidence to show that Foreman knew about Francis’ support for the Union when he notified
management on December 26, 2012, that he wanted to terminate Francis for the associated
losses. Furthermore, there is no evidence that Foreman or other management officials knew
about Francis’ union activity when Foreman asked Rosario to prepare the spreadsheet on the 25
casino losses in follow-up to her earlier email outlining the true variances for him on
December 9, 2012.
c. Whether Respondent demonstrated the requisite animus to meet the Wright Line analysis
30
There is no evidence establishing any independent violations of Section 8(a)(1) of the
Act; thus there is no direct evidence of animus. Accordingly, to make a finding of animus, I
must infer animus from the circumstances surrounding the treatment of Francis. Under the
framework of Wright Line, the burden of proof rests with the General Counsel to establish
animus. In New Otani Hotel & Garden, 325 NLRB 928 fn. 2 (1998), the Board noted that an 35
inference of unlawful motivation may be “drawn from evidence of blatantly disparate
treatment.” The Board has also found that in the absence of direct evidence, animus may be
inferred from the record as a whole. Fluor Daniel, Inc. 304 NLRB 970, 970 (1991), enfd. 976
F.2d 744 (11th Cir. 1992).
40
While Board precedent allows a finding of animus to rest on indirect evidence in
appropriate cases such as Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), there are
also Board decisions that have shown instances when drawing such an inference is
inappropriate. An example may be found in the Board’s decision in J. O. Mory, Inc., 326
NLRB 604 (1998). In that case, the Board reversed a judge’s finding of unlawful motivation 45
JD(ATL)–30–13
27
based upon on an instance in which the respondent employer departed from its customary, and
facially valid, hiring practices.
The General Counsel asserts that the timing of the investigation of the casino losses
and Francis’ involvement with the losses is suspect as it occurs during the period of Francis’ 5
alleged union activity. The total record, however, shows that during December and the last
month of the calendar year, the BAMS system generated a report showing the existing
variances at the Brooklyn facility. Foreman followed up by asking Rosario to determine the
true variances and losses. Within 12 days, Respondent’s regional controller also alerted
Respondent’s directors in the northeast region that there were 122 PLRS with a value of 10
$395,583.62 and that any losses remaining as of December 31 would be accrued; which
would have resulted in Respondent’s absorption of the losses for the year. In response to
Foreman’s directive, Rosario prepared a spreadsheet identifying the messengers who were
associated with the Global Cash Access losses. The results reflected that Francis was
associated with four of the six losses. While it is coincidental that Respondent’s investigation 15
of these losses occurred at a time when Francis alleges to have been actively involved in
union organizational efforts, the coincidence raises only a suspicion. As the Board has long
recognized, “mere suspicion cannot substitute for proof” of unlawful motivation. Frierson
Bldg. Supply Co., 328 NLRB 1023, 1024 (1999); Lasell Junior College, 230 NLRB 1076 fn.
1 (1977). 20
The General Counsel asserts that the timing of Francis’ termination, coming months
after the incidents for which he was allegedly disciplined further establishes animus and
unlawful motive. Respondent contends that any lag in time between the losses in question
and Francis’ eventual termination was justifiable in light of customer practices and the 25
operational difficulties the Brooklyn branch experienced as a result of Hurricane Sandy.
Rosario testified that after a loss at a Global ATM, Global typically takes 4to 6 months to try
to recoup any funds from customers that were overpaid. Respondent also submitted various
letters and correspondence with Global to show that the joint attempt to resolve variances
often covered a scan of months before final resolution. Rosario further testified that her work 30
was also delayed by a month because of the hurricane’s disruption of the Brooklyn operation.
Although Respondent considered Francis’ involvement in a loss that occurred as early
as June 2012, there were also losses in October, and November; losses that occurred just prior
to the disruption of the storm and in the aftermath of the storm. More significantly, however, 35
the record reflects that Respondent’s focus on the losses in early December 2012 was
triggered by the automated BAMS report, the informational email from Respondent’s regional
controller, and perhaps more importantly the directive from Respondent’s Vice President of
Operations. Thus, because of the extenuating circumstances of the storm and the end of the
year analysis of losses, I don’t find suspicious timing in Respondent’s attention to losses in 40
December 2012.
The General Counsel also asserts that animus may be shown when Rosenthal asked
Esammason to not block the entrance to the facility on one single occasion. While the
General Counsel argues that this was a thinly disguised effort to intimidate Esammason and to 45
disrupt his organizing activity at the Brooklyn branch, this statement is the only statement that
JD(ATL)–30–13
28
is alleged to have been made to Esammason by Rosenthal or any other management official of
Respondent. Esammason asserts that he continued to hand out union literature until the date
of the election and there is no evidence that he was prevented from doing so.
The General Counsel also submits that Respondent’s animus is evidenced by the fact 5
that Respondent conducted a campaign in response to the Union’s organizing efforts.
Although Tracy Williams testified that Respondent conducted “speak out” meetings with
employees prior to the election, she did not attend the meetings. Esammason testified that
after the petition was filed, BGS conducted meetings with employees to give their opinion on
the Union. He recalled that BGS told the employees that the Union was just a startup union 10
and was not a reputable union. He also recalled that BGS management told employees that
the law firm representing the Union also dealt with the transit authority workers who had been
involved in a May 2006. There is no evidence that either BGS or Respondent made any
statements to employees during their respective election campaigns that are alleged to be
independent violations of the Act. While I have no doubt that Respondent conducted a 15
vigorous campaign to counteract the Union’s organizing efforts, there is no evidence that
Respondent engaged in aggressive and unlawful conduct that would constitute the level of
animosity that is alleged by the General Counsel.
Francis did not testify that any management official made any statement to him that 20
related to the Union or involved any animus toward the Union. Tracy Williams is the only
witness who provided any testimony concerning a manager’s statement about Francis. She
testified that in January 2013, she observed Francis outside the facility with other individuals.
Although she did not identify a specific date, her total testimony indicates that Francis was
distributing union literature after his suspension or discharge. Williams recalled that she 25
made the statement “Wow, that’s a bold move. The guy is actually forming a union against
the company.” She recalled that Young had been standing near her and he responded “Yeah,
I know. Francis has a lot of nerve doing something like that after everything I’ve done for
him.” While Young’s statement is certainly indicative of animus toward Francis, the record
also reflects that this statement was also made after Foreman’s decision to terminate Francis30
and after the Union’s January 3, 2013 letter announcing Francis’ involvement with the
Union.5 Furthermore, there is no evidence that Yong had any role in the decision to suspend
and terminate Francis. The decision was initially made by Foreman on December 26, 2012
and then finalized by Foreman on January 16, 2013 after the completion of Buckley’s
investigation. Thus, Young’s statement to Williams in January 2013 does not establish that 35
Foreman’s decision to terminate Francis on December 26, 2012 was based on animus for
union activity.

5 Francis testified that after he began to support the Union and before the Union’s letter of
January 3, 2013, he believed that Young stared at him and was less friendly with him. There
is no evidence, however, that Young made any statement to Francis during this time to
indicate knowledge of or animus for his union activity. Thus, the alleged animus based on
Young’s demeanor is only speculation that cannot sustain a finding of animus.
JD(ATL)–30–13
29
d. Continuation of the Wright Line analysis
As discussed above, I do not find that all components of the Wright Line analysis have
been met to establish that Respondent was unlawfully motivated in its decision to suspend and
to terminate Francis. For the foregoing reasons, I do not find that there is sufficient evidence 5
to substantiate that Francis’ union support was known to the Respondent prior to January 3,
2013. Additionally, even if there was credible evidence of the Respondent’s knowledge, the
evidence of animus is marginal. Assuming, however, that the requisite elements of
knowledge and animus have been demonstrated, I nevertheless find sufficient evidence to
show that Respondent would have terminated Francis in the absence of protected activity. 10
e. Respondent’s treatment of other employees involved with losses
The General Counsel takes the position that Respondent has terminated Francis for his
association with losses and yet has not terminated other employees for similar conduct. 15
Respondent’s handbook provides that “loss or mis-delivery” of customer shipments due to
negligence or failure to abide by Company rules, regulations, policies, and procedures may
result in disciplinary action up to and including discharge. Respondent not only asserts that it
has terminated employees for similar losses, but it maintains that since January 2011 until the
present, Francis has been associated with a greater dollar amount in losses than any other 20
employees.
In response to a subpoena from the General Counsel, Respondent prepared a summary
of all ATM and CompuSafe losses paid by Respondent from January 2011 until the time of
the July 2013 trial. The parties stipulate that during this time period, there were 367 losses. 25
For each loss, the summary lists a number of identifying factors including the customer’s
name, date of loss, amount of loss, and the employee associated with the loss. The summary
reflects that during this period of time, Francis is listed as associated with six separate losses.
Respondent admits that the summary reflects that there are other employees who have had
more losses. One other employee identified as Espinal is reflected on the summary as 30
associated with 16 losses. I note, however, that for 14 of the identified losses, the loss is
associated with one or more other employees. For those incidents where only Espinal is
associated with the loss, the loss amounts are $200 and $210 respectively.
In the post-hearing brief, the General Counsel submits that the dollar amounts of the 35
casino losses for which Francis was terminated were also similar in value to the losses
associated with other employees whom Respondent did not discipline. Counsel for the
General Counsel points out that the losses associated with Francis was $2,900 for June 1;
$13,000 for September 7; $3,980 for October 8, and $5,000 for November 16. Counsel
submits that Respondent’s summary reflects that employees “D. Tavares” and “L. Paulino” 40
were jointly associated with a loss of $9,900; Maysonet was associated with a loss of $8,875,
and J. Lewis was associated with a loss of $4,120. The General Counsel also contends that
even though there was a total of 367 losses between January 1, 2011 and the date of the trial,
Respondent terminated only two other employees in connection with their losses other than
Francis. The record also reflects that Respondent terminated three other employees on 45
JD(ATL)–30–13
30
February 11, 2010, October 19, 2010, and January 13, 2012 in connection with losses at the
Brooklyn branch.
There is no evidence that Respondent has a practice in which an employee is
disciplined or discharged after reaching a specific threshold amount of associated losses. 5
Respondent asserts that it terminated R. Mendoza on October 19, 2010, after it was
determined that he was the messenger connected with three losses totaling $14,860.
Respondent also submits that it terminated A. Serrano on January 5, 2011, after it was
determined that he was the messenger associated with a high frequency of ATM shortages
during the calendar year 2010 and totaling $20,200. Furthermore, Respondent points out that 10
on April 9, 2012, Respondent terminated J. Diaz because he was determined to have been
associated with losses of $6,420. As evidence by the records submitted by the General
Counsel, there have been other employees who have been associated with a large number of
individual losses who have not been disciplined or discharged. Thus, there is no pattern or
uniformity in Respondent’s treatment of employees with respect to associated losses. There is 15
however, one difference between Francis and any of the other employees advanced by the
General Counsel in the argument that Respondent treated Francis disparately. The record
reflects that in July 2011, Francis was clearly associated with a loss of $31,000. While
Respondent’s investigation did not determine that Francis took the missing cash or purposely
diverted it, he was nevertheless the messenger who took possession of the cash and who20
subsequently failed to complete the necessary paperwork to secure the cash. But for Young’s
intervention, Foreman would have terminated Francis at that time. He was, however, given a
second chance. After a loss of this magnitude in 2011, Francis was again associated with
losses totaling approximately $24,540 between June 1 and November 16, 2012. Thus,
Respondent submits that between January 1, 2011, and the date of his discharge, Francis was 25
associated with losses of $51,896 in comparison to the next closest messenger; R. Espinal
who was associated with a total of $21,920 in losses.
3. Final conclusions
30
As I have indicated above, I do not doubt that Marvin Francis supported the Union or
that he wanted to assist Esammason in his organizing efforts at the Brooklyn facility. There is
simply an insufficiency of evidence to demonstrate that he did so in a way that garnered
Respondent’s knowledge or that triggered his discharge because of his union support.
Furthermore, it is simply not plausible that the basis for his termination was pretextual. In 35
order to do so, I would need to find that Foreman’s request to Rosario for a status report on
losses was not prompted by the BAMS report of December 6, 2012, and was made solely to
target Francis. Further, I would need to find that Rosario’s spreadsheet was erroneous and
that it was prepared for the purpose of focusing only on Francis’ losses. Rosario credibly
testified that Foreman did not request that she focus her investigation on any particular 40
messenger. She reported to Foreman that as of December 9, 2012, 13 open losses remained
and 7of those losses related to Global Access Cash. In order to find a pretext, I would also
have conclude that the December 18, 2012 email from Respondent’s regional controller
concerning the open PLR’s of almost $400,000 and Vice President Vechiarella’s directive to
resolve the potentially accruing PLR’s was either of no significance to Respondent or were 45
JD(ATL)–30–13
31
generated solely to target Francis for his losses. I have no reason to conclude that this
correspondence was inconsequential, invalid, or discriminatorily based.
The record contains a myriad of evidence concerning the various SL1 forms and guide
sheets that pertained to the four losses associated with Francis. Rosario testified in detail how 5
she conducted her investigation of the losses and how she came to conclude that Francis was
associated with these losses. Generally, she found Francis to be the messenger who
participated in the servicing of the ATMs on the day before the losses or the day when the
losses were established. She did so based on her finding that Francis’ name was either
preprinted on the documents or was handwritten on the documents. During his testimony, 10
Francis contended that he was not responsible for the losses. He either contended that
someone else had written his name on the documents or that he had not been on the routes in
question. I don’t find Francis’ testimony to be wholly convincing with respect to these
denials. As an example, Francis denies that he serviced the ATM on the day of the September
7, 2012 loss; however, he acknowledges that he was on the route for this ATM on the 15
previous day that it was serviced. He confirmed that he worked the route with two other
employees who did not normally work on the casino route. He denies responsibility for the
loss as he claims that he only serviced the top of the ATM in question and that fellow
employee K. Gordon serviced the bottom of the machine. He acknowledged, however, that
he didn’t know if Gordon was even qualified to service the ATM. 20
When Buckley interviewed Francis on January 3, 2013, he concluded that Francis was
evasive and misleading and this report was given to Foreman. Francis’ testimony concerning
his involvement with the losses was not persuasive or convincing. Francis denies his
involvement in several of the losses by contending that someone else wrote his name on the 25
SL1’s or guide sheets in question. Inasmuch as Francis also testified that the driver often
completes part of the documentation rather than the messengers, the absence of Francis’
handwriting is not of great consequence. Specifically, Francis testified that it is common for
drivers to complete the guide sheets. Thus, while Francis may not have written his name on
some of the relevant guide sheets, the driver on the route may have done so. Thus, it was 30
irrelevant whether Francis or someone else on the crew inserted his name on the guide sheet
and it was not inappropriate for Rosario to rely on the guide sheets in preparing her
spreadsheet.
As I discussed with the parties over the course of the hearing, the crux of the issue is 35
not whether Francis caused the particular losses, but whether Respondent believed that he was
responsible or associated with the losses and terminated him because of this belief. There is
no indication that Foreman or any other manager made any independent analysis of the
various loss documents to determine the extent to which Francis was involved. Buckley even
testified that he could not look at the documents and determine their significance. He testified 40
that he met with Rosario in order that she could explain the documents and her analysis to
him. Thus, both Foreman and Buckley relied on the information provided by Rosario. She is,
therefore, a critical witness in my analysis of the evidence and in making the associated
credibility determinations.
45
JD(ATL)–30–13
32
I found Rosario to be a credible witness. She is not a member of management and she
is one of three reconciliation clerks; whose job involves the analysis of variances and losses.
There was nothing in the record to indicate that Rosario had any animus toward Francis or
any reason to single him out. Williams, who assisted Rosario in her analysis, and who was
also called as a witness for the General Counsel, acknowledged that some of the losses 5
associated with Francis were “pretty large.” Even though Williams helped Rosario to locate
the loss documents associated with Francis, she did not testify that she was aware that Rosario
was doing so for a discriminatory purpose. As Williams was a member of management at this
time, it is reasonable that she would have known if the loss analysis related to Francis was
associated with his union activity or for any other discriminatory purpose. Accordingly, there 10
is simply insufficient evidence to establish that Respondent’s reason for terminating Francis
was pretextual or for reasons other than those asserted.
For the reasons and rationale as set forth above, I do not find that Marvin Francis was
suspended on January 3, 2013, and terminated on January 16, 2013, because he engaged in 15
protected activity.
CONCLUSION OF LAW
The General Counsel has failed to prove by a preponderance of the evidence that 20
Respondent violated the Act in suspending and terminating Marvin Francis. Thus, the
Respondent is not shown to have violated the Act as alleged in the complaint. On these
findings of fact and conclusions of law and on the entire record, I issue the following
recommended: 6
25
ORDER
The complaint is dismissed.
Dated, Washington, D.C. November 25, 201330
35
Margaret G. Brakebuch
Administrative Law Judge
40

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided by Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.