Business Resource Security Services, USA Inc. (BRSS)

National Labor Relations Board - Administrative Judge Opinions

Sep 11, 2014

05-CA-119728 (N.L.R.B. Sep. 11, 2014)

JD–54–14
Washington, DC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BUSINESS RESOURCE SECURITY
SERVICES, USA, INC. (BRSS)
and Case 05-CA-119728
ROGER PROPHET, AN INDIVIDUAL
Brendan Keough, Esq.,
for the General Counsel.
Dr. Johnson Ayodele Akingbade,
of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
Eric M. Fine, Administrative Law Judge. This case was tried in Washington, D.C., on
May 12, 2014. Roger Prophet filed the charge on December 27, 2013, and the first amended
charge on March 5, 2014.1 The General Counsel issued the complaint on March 28, 2014,
alleging, as amended at the hearing, that Business Resource Security Services, USA, Inc.
(BRSS) (Respondent) interrogated and threatened Prophet concerning his union activities in
violation of Section 8(a)(1) of the Act; and discharged him in violation of Section 8(a)(3) and (1)
of the Act.
On the entire record, and after considering the briefs filed by the General Counsel and
the Respondent,2 I make the following:
Findings of Fact
I. Jurisdiction
Respondent, a corporation, has an office and place of business in the District of
Columbia and has been engaged in the business of providing security guard services to various

1 All dates are in 2013 unless otherwise indicated.
2 Following the filing of briefs, counsel for the General Counsel filed a “Motion to Strike Portions of
Respondent’s Brief to the Administrative Law Judge.” The General Counsel points out Respondent filed
two briefs, the second version being a corrected version of the first which had been mistakenly filed
unedited. The General Counsel asserts in both briefs Respondent makes assertions based on facts not
placed in evidence at the hearing. It is asserted that those close claims and any post-hearing evidence
submitted solely via Respondent’s briefs should be stricken from the record and not considered.
Respondent did not file an opposition to the General Counsel’s motion, which I grant.
JD–54–14
2
properties in the District of Columbia. During the past 12 months, a representative period,
Respondent has provided services valued in excess of $50,000 for the United States
government. Respondent admits and I find it is an employer engaged in commerce under
Section 2(2), (6), and (7) of the Act. Respondent also admits and I find the Service Employees
International Union, Local 32BJ (the Union) is a labor organization under Section 2(5) of the Act.5
II. Alleged Unfair Labor Practices
The facts in this case are largely not in dispute. Dr. Johnson Ayodele Akingbade,
Respondent’s president and owner was the only person called as a witness.3 Akingbade has 10
owned Respondent since 1997, the year it was established. At the outset of the hearing, the
parties entered into evidence a signed stipulation of facts as well as some joint exhibits. The
written stipulation reveals: Respondent and the Union have a collective-bargaining agreement
pertaining to certain employees of Respondent, including employees located at 2860 South
Capitol Street, SE, Washington D.C. Prophet began his employment with Respondent on 15
December 27, 2011, and his employment was terminated by Respondent on October 19,
2013, because Prophet refused to respond to Respondent's email inquiry originally sent on
October 8, and later re-sent on October 18. At the time of his termination, Prophet was
working for Respondent at the D.C. Department of Transportation located at 2860
South Capitol Street, SE, Washington D.C.20
Respondent employs about 135 to 140 security guards at 18 locations. Prophet
worked for Respondent as a security guard. Respondent is a subcontractor to Allied Barton,
a company also providing security services. Respondent began subcontracting work from
Allied Barton in September 2009. At that time, Allied Barton had already entered into a 25
collective-bargaining agreement with the Union. When Respondent began subcontracting
from Allied Barton it adopted the collective-bargaining agreement between Allied Barton and the
Union, which covers Respondent’s security guards.
Concerning the facts resulting in Prophet’s termination, by email dated August 3, 30
Respondent office assistant Kim Wilson sent the weekly schedule for Respondent’s security
guards working at the 2860 South Capitol Street location for the period August 5 to August 11.
The email was sent to Prophet, along with other security guards, and copied to Akingbade. The
schedule attached to the email shows Prophet was scheduled to work on Tuesday, Wednesday,
Saturday, and Sunday each with eight hour shifts. On August 3, Prophet sent an email to 35
Wilson concerning the August 5 to 11 schedule, stating, “I start a new part-time job next week
Saturday and Sunday.” That same day Wilson forwarded Prophet’s email to Akingbade.
On August 4, by email Wilson issued a revised weekly schedule for the period August 5
to August 11. The revised schedule was sent to Prophet along with the other security guards at 40
the location in question and copied to Akingbade. The only change in the revised schedule was
to remove Prophet from his Saturday and Sunday shifts and replace him with other security
guards on those shifts. Prophet was replaced by guards Jackson on Saturday,
August 10, and Hunter on Sunday, August 11. Akingbade testi f ied this change
was made pursuant to his instruction and was done in response to Prophet's email45
stating he had another job.

3 I found Akingbade, considering his demeanor and the content of his testimony, to have
testified in a credible fashion. In this regard, Akingbade testified in a straight forward and
consistent manner and did not try to embellish his testimony.
JD–54–14
3
On August 28, Profit sent Akingbade an email stating, “the weekend job didn’t work out
so I’m free for weekends.” On August 29, Akingbade sent an email to Prophet stating, “You do
not expect this Company to submit to your manipulation by inconveniencing our single-mindedly
loyal employees in order to suit your change of fortune on your ‘new jobs’. We have adhered to
your wish to quit weekend assignments and we made our plan, long term, to exclude you on 5
weekends accordingly. If we ever need your services on any weekends or occasions, we’ll let
you know.”
On September 5, Union Grievance Representative Marizabel Orellana sent Akingbade
an email stating she was attaching a “Grievance Initiation” letter regarding Prophet. Orellana 10
stated, “Mr. Prophet reported to us when he was going to start his vacation two weeks ago, he
received notice about change in position. When he returned to work last week only scheduled
now for 16 hours instead of 32 as he had before. Please send your response to Teo
(Rodriguez) within five business days.” Rodriguez is the Union’s chairman of the grievance
committee. The attached grievance stated, in pertinent part:15
Claim #1: Member claims that his/her hours of work were or will be changed without
sufficient cause or reason effective 8/12/13. The Union seeks that the Employer be
directed to restore the member to his/her original work hours without loss in pay,
benefits, and seniority.20
And in order to conduct our investigation into the merits of this grievance, please
forward your personnel file concerning Mr. Prophet to the Union office by Sept. 12th,
2013.
The first step of the grievance procedure is an informal hearing. After a
determination that the grievance has merit, the Union will seek to schedule such a 25
hearing. If the matter cannot be resolved through an informal hearing, the matter may
proceed to arbitration to resolve the dispute.
On September 7, Akingbade sent an email to Rodriguez responding to Prophet’s
grievance. Akingbade stated as follows:30
1. OFFICER ROGER PROPHET has lied to you (that he did not know why his
assignments had reduced)-- and we will not take it likely. It was he who took himself out
of his weekend duties (see his email dated 8/03/13 far underneath) when he informed us
five weeks ago that he had secured a new job with another company on weekends. He 35
followed up his email by calling on and telling our Office Staff to insure that he was not
deployed any more weekends. We complied by taking him off his weekend assignments
accordingly.
2. To our surprise, we received an email 8/28/13 from Officer Prophet, below, telling us
his new job had collapsed and wanted his weekend assignment back--25 days after he 40
secured the new job. Our response saying “No, but...” dated 8/29/13 is reproduced
below.
3. His loyalty already came into question when, by his email dated 8/3/13, he informed
us that he had chosen a new job in preference to ours on weekends; yet, we did not
penalize him as we allowed him to retain his other shifts. This statement he made to 45
SEIU 32BJ shows him as a barefaced liar and I am not too sure if it is safe to allow his
lying to go unchallenged; it is possibly a symptom of worse developments waiting to
occur, perhaps soon. We’ll test the water and have him queried accordingly.
We should like to know why his new employer dropped him after 25 days, in case the
reason (e.g. if due to lying) is germane to the basis of his employment here. BRSS, as a 50
policy, does not hire someone who was rejected by their former employer.
We are sure that SEIU32BJ will be on our side in fishing out any undesirable element
in this Company— one who had the audacity to come to you and has caused you and
his Management to spend our scarce time on a matter that is all a lie!
55
JD–54–14
4
Akingbade testified that when he said Prophet lied to the Union by not telling them why
his assignment changed that Akingbade was not present when Prophet spoke to the Union
about his grievance. Akingbade testified in reaching the conclusion that Prophet lied to the
Union concerning the grievance, that Akingbade relied only on what he received from the Union
in terms of the September 5 email and attached grievance. Akingbade testified he believed 5
what Prophet said to the Union was what was communicated to Akingbade by the Union’s
grievance letter. Akingbade testified he did not send his grievance response to Prophet, rather
he expected the Union to inform Prophet of Akingbade’s response.
On September 25, Rodriguez sent Prophet a letter stating, in part10
We have carefully reviewed the facts and circumstances surrounding your grievance
and have determined that it lacked sufficient merit for the Union to be likely to prevail in
arbitration. For that reason, it is not in the interest of the Union and its membership to
carry this case forward to arbitration. 15
Akingbade testified he never had a meeting with the Union over Prophet’s change of
schedule grievance. Akingbade testified he did not see a copy of the Union’s September 25
letter to Prophet or know about the Union’s decision to drop the grievance until December when
Akingbade attended an unemployment hearing concerning Prophet. 20
On October 8, Akingbade sent an email to Prophet, which states as follows:
1. In the Grievance you filed against this Company through the Union dated
September 5, 2013 (marked W), you alleged that this Management slashed your hours 25
of work from four 8 hour shifts to two shifts after your "return from vacation", that you
were only scheduled "for 16 hours instead of 32" as you had before.
2. You did not say that it was you who asked us to cancel your two shifts on
weekend when you informed us, per your email dated 8/3/13 (marked V), that you were
starting "a new job" "next Saturday and Sunday" ie. from Saturday 8/10 and Sunday 30
8/11/13.
3. When on 8/3/13 you saw the 8/5 to 8/11/13 Weekly Schedule released at
10.29 am same day 8/3/13 (marked VIl) showing you being assigned for your regular
duty Saturday 8/10 and Sunday 8/11/13, you, to our surprise, called our Office Assistant
and told her to cancel both assignments as you were going to start a new job with 35
another company on weekends starting on Saturday 8/10 and Sunday 8/11/13. You
followed it up with an email; as aforementioned, dated same day 8/3/13 released at 4.13
pm (marked V).
4. Our Office Assistant had to take the trouble, the next day Sunday 8/4/13, to
revise the entire Weekly Schedule (marked VI) to accommodate your weekend 40
cancellation demand. She sent out the Revised Weekly Schedule (marked VI) at 9.51
am, Sunday 8/4/13. The cancellation affected some other Officers who had to be
displaced and deployed to fill Officer Prophet's vacated two shifts, Saturday 8/10 and
Sunday 8/11/13, respectively.
5. To our yet another surprise, you sent us an email dated 8/28/13 (marked 111) 45
advising us that your new job had flopped and you wanted to be returned to your former
two shifts Saturday and Sunday which you voluntarily abandoned for the sake of
satisfying a new employer. We responded to you 8/29/13 (marked 11) declining your
untenable, manipulative request. We commend the email to you for a fresh reading.
It was a week later September 5, 2103 (marked IV) that we received a letter of your 50
grievance falsely claiming that it was because you went on a vacation that we took the
Saturday and Sunday assignments from you!
JD–54–14
5
6. We are pained by your barefaced lie against this company and, as we said in
our letter to the Union dated which 9/5/13 (marked 1), we planned to take up the matter
seriously as we are now doing with you. You are advised to read our said email marked
IV so you can assess the depth of our feeling on the matter.
7. We had deliberately allowed a good interval to see whether you would contest 5
our explanation to the Union (marked 1) or you would take step to withdraw your false
allegation against this Company. Neither action has taken place; hence we hereby
request you to explain why a severe disciplinary action (including but not limited to
termination) should not be taken against you for lying against this Management and for
portraying your employer in bad light to the esteemed SEIU 32BJ Union.10
8. This Management takes lying by a security officer very seriously. It destroys
the trust our employees should expect to enjoy from us, their employer; and it is our firm
belief that an employee who lies against his employer (to whom he is responsible for
his/her means of livelihood) can, with considerable comfort, lie against any other person
including our clients and members of the public; very easy against his/her fellow co-15
workers.
Lying or dishonesty is a contravention of BRSS Policy as contained in scattered pages
of the BRSS HANDBOOK namely page 4 item 2 in a Policy memo titled "Re 36 point
Ejection/Rejection/Termination Offences", page 49 second asterisked item in a memo
titled "Employee Conduct and Work Rules", page 54, item 48 in a Policy Memo titled 20
“Summary of Laxities, Lapses, Inadequacies, Pitfalls and Violations To Be Avoided or
Corrected For a Successful Career With BRSS"; page 59 item XI; page 81 CODE OF
CONDUCT, ITEM 11.
9. In the interim period since you made your false accusation against this
company, we have begun a review of your overall record in this Company. We hope to25
conclude the exercise soon after the receipt of your response expected within 48 hours
ending 7.30am Thursday 10/10/13.
10. Please comply with sending your response within the deadline of 7.30 am
Thursday 10/10/13. FAILURE to respond is, in itself; a serious infraction per items 3 and
4 of page 4 of the BRSS HANDBOOK titled "Re: 36 point Ejection, Rejection, 30
Termination Offences" and it amounts to insubordination per the 18th asterisked item on
page 49 of the BRSS HANDBOOK.
Akingbade testified Prophet did not respond to Akingbade’s October 8 email. However,
Akingbade met with Prophet on October 10 in person concerning a stolen laptop at the worksite 35
where Prophet was working. Akingbade testified he did not suspect Prophet of stealing the
laptop, nor did he conclude Prophet stole it. Akingbade testified that, during the meeting, he
asked Prophet for a response to the inquiry set forth in Akingbade’s October 8 email.4 He
testified that Profit again did not respond to that question.
40
On October 18, Akingbade sent an email to Prophet stating that:
1. When you came to this Office 10/10/13 in connection with the incident at
#2860 site, I seized the opportunity to remind you of our query below dated 10/8/13 and
got a copy delivered to you as you were waiting in the Office lobby. You read the query 45
and returned it to me saying you were already dealing with it.
2. Even though the deadline before the submission of your response passed
10/10/13 over a week ago, we have, since then, been waiting in vain for your response.

4 At the trial, as a result of this testimony, counsel for the General Counsel amended the
complaint to include a Section 8(a)(1) allegation concerning Akingbade’s admitted questioning
of Profit during the October 10 meeting.
JD–54–14
6
3. We hereby, as a concession, give you 24 hours ending 11.25 am tomorrow
Saturday 10/19/13 to receive your written response by email, fax or hand delivery.
Otherwise, we shall take your lack of response by 11.1 am tomorrow 10/19/13 as an
admission of all the charges leveled against you in our said query and shall go ahead to
take an appropriate decision in line with the Company’s policies, rules and regulations as 5
contained in the BRSS HANDBOOK including what were liberally cited in our said query.
Akingbade testified that Prophet did not respond to the October 18 email.
On October 19, Akingbade sent Prophet an email the subject of which was "Letter of10
termination of your employment with BRSS, effective immediately, 10/19/2013." The email
stated, in part:
1. We refer to our query dated 10/18/13 below granting you an unsolicited 24 hour
extension following 8 days since the expiration of the deadline for the original query 15
issued to you 10/08/13.
2. We observe, with utmost regret that, even in spite of the telephone reminder
made twice yesterday into your voicemail by our Office Assistant, per her report below,
and despite the pre-warning given in our said query, you have failed to respond to the
query till now, 6 hours after the expiration of the deadline!20
3. Your employment with this company is accordingly terminated effective
immediately.5
Following his discharge, Prophet filed for unemployment benefits with the D.C.
government. Prophet’s initial claim was denied, to which he filed an appeal on November 20. 25
The appeal raised the issue of whether Prophet was discharged for cause constituting
misconduct under the District of Columbia regulations pertaining to its unemployment
compensation act. The record contains a decision by a District of Columbia administrative law
judge who rendered the decision on Prophet’s appeal for benefits. A hearing was held before
the judge on December 11, at which both Prophet and Akingbade attended.30
The D.C. judge stated in her decision that Akingbade stated Respondent discharged
Prophet because he interpreted Prophet’s failure to respond to his inquiries as dishonesty and
considered Prophet’s failure to respond as insubordination. The D.C. judge stated:
35
It is undisputed that Claimant (Prophet) asked to be removed from the weekend
schedule to work another job. It is also undisputed that Claimant filed a grievance
stating that Employer reduced his hours. In Claimant’s testimony, he admitted that he
asked Employer to remove him from the weekend schedule so that he could work his
other job. Despite this, Claimant asserts that his statement in his grievance that 40
Employer reduced his hours upon return from vacation was truthful. On this record, I
find that Employer established that Claimant was not truthful to the Grievance Board in
the reason why his hours were reduced. Claimant provided no mitigating reason why he
made the statement.
45
The D.C. judge went on to state, “I do find that Claimant breached his obligation to be truthful to
and about Employer. Therefore, under the facts of this case, I conclude that Employer
established that Claimant’s dishonesty was simple misconduct.” The D.C. judge stated, “It is
undisputed that Employer communicated to Claimant numerous times to respond to Dr.
Akingbade as to why he stated in his grievance that the Employer had reduced his hours. 50

5 At the time of the hearing there was no pending grievance over Prophet’s discharge.
JD–54–14
7
Employer also extended the deadline by which Claimant could respond by more than a week.
Claimant did not respond to any of Employer’s queries and Employer considered Claimant’s
action to be insubordination.” The D.C. judge concluded Prophet was disqualified from
receiving unemployment compensation for a period of 8 weeks, but thereafter could receive
benefits.5
Akingbade testified at the unfair labor practice trial the stolen laptop was not the reason
he terminated Prophet. He testified, “I gave him a query to explain why, you know, why he
went to the Union to lie, because it was a big lie he told. And we cannot accommodate
somebody who lies in the Company. The lie he told was that he said I cut his hours because10
he returned from vacation. I didn't – if somebody goes on vacation, he has to get his hours
back upon return according to the Union agreement. So he told them that I punished him for
going on vacation, which is not true. He was the one who withdrew the two shifts.”
Akingbade testified his problem was Prophet did not answer Akingbade’s query. Akingbade
testified whatever response Prophet may have given would have been something to work on, 15
but Prophet just ignored the query. Akingbade testified, “I don't know how we can establish
discipline in an organization when an employee refuses to answer my query. That was why
he lost and appealed to the Department of Unemployment. He lost there for the same reason.
We went before the Administrative Judge hearing. He lost because the judge said I have the
authority, I mean, I have a right to query to my employee. And this is -- for firing employee not20
to respond to his employer at all. Akingbade testified, he lost at the Union itself. The Union
dismissed his claim. The Department of Unemployment dismissed it. The Administrative
Judge dismissed it.”
Akingbade testified that from the correspondence from the Union he believed that 25
Prophet lied to the Union by claiming that it was because Prophet went on vacation that
Akingbade reduced Prophet’s hours. Akingbade testified he fired Prophet, “Because he refused
to answer the query given to him.” He testified “The query was to explain why he lied to the
Company, why he gave -- I mean to the Union. Why he gave wrong information to -- why he
lied to the Union about the reason why his hours were reduced. And according to our policy,30
which is in our manual, lying even in little things matters to us. And if somebody should lie
against me, the Employer, my belief is that he could easily lie against anybody else. So we
wanted him to clear that. He could have tendered an apology, which I would have accepted.
He just refused to answer. He refused.” When asked if that was the only reason Akingbade
fired Prophet, Akingbade testified, “That was the reason, for refusing to answer a query.” He 35
testified, “It is the policy, in our policy. If you refuse to answer, it says insubordination.”
Akingbade cited sections of Respondent’s Handbook upon which he relied in his
decision to terminate Prophet. Akingbade testified the employees receive and sign a copy of
the handbook when they start working for Respondent. Akingbade also provided a copy of two 40
different schedules from 10/7 to 10/13 and from 10/14 to 10/20 showing that Prophet worked 32
hours during those weeks. In this regard, Akingbade testified when he had the opportunity he
gave Prophet extra hours as promised. Akingbade testified his terminating Prophet was not
about his going to the Union and that he did not have anything against Prophet’s going to the
Union. Akingbade testified he took lying very seriously because Respondent’s security45
officers are required to be very honest in everything they do. He testified Respondent relies on
their reports, and this was especially in the case of Prophet, who was working at a site where
only one officer worked at a time. Prophet worked at the D.C. government’s Department of
Transportation site.
50
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8
Akingbade testified there is a contract signed between Allied Barton and the D.C.
Government requiring Akingbade to discipline anybody who is dishonest. The contract
provision is section C-19. He testified it is a contract for Citywide Security Services for security
guard services in Washington, D.C. Ak ingbade tes t i f i ed he ob ta ined a copy f rom
Allied Barton’s project manager as well as from the D.C. government website. Akingbade 5
testified he downloaded the contract prior to discharging Prophet and that he uses the contract
to train employees. Section C-19. of the contract reads “Removal of Contractor Employees
from Post.” It states at C-19.1:
The contractor acknowledges that it's responsible for removal of contractor's employee10
from a post, and that it's responsible for ensuring that all employees comply with
directives issued by the COTR.
It states:
In addition, the contractor agrees to maintain satisfactory standards of employee
competence, conduct, appearance, and integrity and shall be responsible for taking15
such disciplinary action as is deemed necessary with respect to its employees.
Section C-19.4, states: "The contractor shall be required to dismiss such employees within
the timeframe ranging from immediately to the week after as specified by the COTR. Any
employee so dismissed shall have no time eligible to work under this contract, should at no20
time be eligible to work under this contract." Akingbade testified that COTR is the agency in
charge of supervising contractors. It is now known as DGA, Department of General Services.
Respondent’s handbook contains Section 36, “Point Ejection/Rejection/Termination
Offenses:” It states “Offenses that could lead to the instant ejection of (or other disciplinary 25
action against) a Security Officer” include: “2. Telling lies or untruth or misrepresentation or
engaging in deceit;” “3. Failure to respond and promptly to operational/administrative queries
from the site coordinator, fellow colleagues or from Management;” “4. Failure to respond to
other Management’s request for information;” “36. Insubordination, rudeness or lack of
cooperativeness and courtesy to the designated site coordinator and/or his/her assistant.”30
Article 10 section 4 of the collective-bargaining agreement in effect provides that:
Assignments, promotions, and the filling of vacancies, shall be determined on the basis
on seniority, provided that in the sole and exclusive opinion of the Employer of the 35
Employee is qualified, suitable and available to work. Seniority shall be determinative
when, and only when all other job-related factors are equal.
A. Analysis
40
In NLRB v. City Disposal Systems, 465 U.S. 822 (1984), the Court gave its approval to
the Board's decision in Interboro Contractors, 157 NLRB 1295 (1966). In Interboro the Board
found that it is a Section 7 right for an employee to assert rights conferred on him and his fellow
employees through a collective-bargaining agreement. In NLRB v. City Disposal Systems,
supra at 835-837, the Court stated:45
Moreover, by applying Section 7 to the actions of individual employees invoking their
rights under a collective-bargaining agreement, the Interboro doctrine preserves the
integrity of the entire collective-bargaining process; for by invoking a right grounded in a
collective-bargaining agreement, the employee makes that right a reality, and breathes 50
life, not only into the promises contained in the collective-bargaining agreement, but also
JD–54–14
9
the entire process envisioned by Congress as the means by which to achieve industrial
peace.
To be sure, the principal tool by which an employee invokes the rights granted him in
a collective-bargaining agreement is the processing of a grievance according to
whatever procedures his collective-bargaining agreement establishes. No one doubts 5
that the processing of a grievance in such a manner is concerted activity within the
meaning of Section 7. [Citations omitted.] Indeed, it would make little sense for Section
7 to cover an employee's conduct while negotiating a collective-bargaining agreement,
including a grievance mechanism by which to protect the rights created by the
agreement, but not to cover an employee's attempt to utilize that mechanism to enforce 10
the agreement.
In practice, however, there is unlikely to be a bright-line distinction between an
incipient grievance, a complaint to an employer, and perhaps even an employee's initial
refusal to perform a certain job that he believes he has no duty to perform. It is
reasonable to expect that an employee's first response to a situation that he believes 15
violates his collective-bargaining agreement will be a protest to his employer. Whether
he files a grievance will depend in part on his employer's reaction and in part upon the
nature of the right at issue. In addition, certain rights might not be susceptible of
enforcement by the filing of a grievance. In such a case, the collective-bargaining
agreement might provide for an alternative method of enforcement, as did the20
agreement involved in this case, see supra, at 1507, or the agreement might be silent on
the matter. Thus, for a variety of reasons, an employee's initial statement to an
employer to the effect that he believes a collectively bargained right is being violated, or
the employee's initial refusal to do that which he believes he is not obligated to do, might
serve as both a natural prelude to, and an efficient substitute for, the filing of a formal 25
grievance. As long as the employee's statement or action is based on a reasonable and
honest belief that he is being, or has been, asked to perform a task that he is not
required to perform under his collective-bargaining agreement, and the statement or
action is reasonably directed toward the enforcement of a collectively bargained right,
there is no justification for overturning the Board's judgment that the employee is 30
engaged in concerted activity, just as he would have been had he filed a formal
grievance.
The fact that an activity is concerted, however, does not necessarily mean that an
employee can engage in the activity with impunity. An employee may engage in
concerted activity in such an abusive manner that he loses the protection of § 7. 35
(Citations omitted.)
The Court went to state:
Respondent further argues that the Board erred in finding Brown's action concerted 40
based only on Brown's reasonable and honest belief that truck No. 244 was unsafe. Brief
of Respondent 38. Respondent bases its argument on the language of the collective-
bargaining agreement, which provides that an employee may refuse to drive an unsafe
truck “unless such refusal is unjustified.” In the view of respondent, this language allows a
driver to refuse to drive a truck only if the truck is objectively unsafe. Regardless of 45
whether respondent's interpretation of the agreement is correct, a question as to which
we express no view, this argument confuses the threshold question whether Brown's
conduct was concerted with the ultimate question whether that conduct was protected.
The rationale of the Interboro doctrine compels the conclusion that an honest and
reasonable invocation of a collectively bargained right constitutes concerted activity, 50
regardless of whether the employee turns out to have been correct in his belief that his
JD–54–14
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right was violated. See supra, Part II. No one would suggest, for instance, that the filing of
a grievance is concerted only if the grievance turns out to be meritorious. As long as the
grievance is based on an honest and reasonable belief that a right had been violated, its
filing is a concerted activity because it is an integral part of the process by which the
collective-bargaining agreement is enforced. The same is true of other methods by which 5
an employee enforces the agreement. On the other hand, if the collective-bargaining
agreement imposes a limitation on the means by which a right may be invoked, the
concerted activity would be unprotected if it went beyond that limitation. See supra, at
1514.
In this case, because Brown reasonably and honestly invoked his right to avoid driving 10
unsafe trucks, his action was concerted. It may be that the collective-bargaining
agreement prohibits an employee from refusing to drive a truck that he reasonably
believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown's action was
concerted but unprotected. As stated above, however, the only issue before this Court
and the only issue passed upon by the Board or the Court of Appeals is whether Brown's 15
action was concerted, not whether it was protected.
The NLRB's Interboro doctrine recognizes as concerted activity an individual
employee's reasonable and honest invocation of a right provided for in his collective-
bargaining agreement. We conclude that the doctrine constitutes a reasonable
interpretation of the Act. Accordingly, we accept the Board's conclusion that James 20
Brown was engaged in concerted activity when he refused to drive truck No. 244. We
therefore reverse the judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion, including an inquiry into whether respondent
may continue to defend this action on the theory that Brown's refusal to drive truck No.
244 was unprotected, even if concerted. Id at 840-841.25
In City Disposal Systems, Inc. v. NLRB, 766 F2d 969, 972 (6th Cir. 1984), the court on
remand stated:
The primary question before us on remand is the first element of the standard: whether 30
substantial evidence supports the finding that Brown's statements and actions in refusing
to drive truck 244 were based on a reasonable and honest belief that he was being
directed to perform a task that he was not required to perform under the collective
bargaining agreement. It should be clear that this test is neither wholly subjective nor
wholly objective. Action based upon an honest but unreasonable belief is not concerted. 35
Similarly, an employee's action is concerted if it is both subjectively honest and objectively
reasonable, “regardless of whether the employee turns out to have been correct in his
belief that his right was violated.” City Disposal, 104 S.Ct. at 1516. To determine whether
substantial evidence exists that Brown acted on an honest and reasonable belief that a
collectively-bargained right was being violated, we examine the collective bargaining 40
agreement that created Brown's employment rights, the objective evidence known to
Brown indicating that a right was being violated, and Brown's own words and actions.
The court thereafter affirmed the Board’s finding that Brown honestly believed the truck he was
assigned was unsafe was supported by substantial evidence. The court upon a review of the 45
evidence stated that substantial evidence supports the ALJ’s finding that Brown was engaging
in concerted activity when he refused to drive the truck. The court noted that the final question
was although Brown’s activities were concerted was whether they were protected. In finding
that Brown’s refusal to drive the truck was not “unjustified” within the meaning of the applicable
provision of the collective-bargaining agreement, and because his actions were not “abusive” 50
JD–54–14
11
that Brown’s refusal to drive the truck was protected, and therefore he was discharged for
engaging in protected concerted activity in violation of Section 8(a)(1) of the Act.
In Newark Morning Ledger, 316 NLRB 1268, 1271-1272 (1995), the judge concluded
that supervisor DeSimone had approved the assignment of two of three suggested apprentices 5
by the union vice chapel chairman Korines to perform on a night shift as substitutes for
journeymen. In this regard, the judge concluded that DeSimone explicitly refused to allow
apprentice Flannery to be put up as a journeyman. The judge also found that Korines, having
been notified of the refusal, decided to take matters into his own hands and physically modified
the markup sheet by changing Flannery's assignment from apprentice to journeyman. The 10
judge stated that:
Korines testified that he interpreted the contract as meaning that he could, as vice
chapel chairman, ignore the Company's refusal to give permission and refer a substitute
apprentice to work as a substitute journeyman, with the Company having the remedy of 15
refusing to allow the referred man to work the shift. As I have already indicated, this
interpretation of the contract would effectively nullify section 3(a) thereof and is
inconsistent with the acknowledged longstanding practice of the parties. In effect,
Korines' interpretation would put the Company in the position of either accepting the
nonapproved substitute or of sending him home and not having enough time to find a 20
suitable person to man the job. In short, it is my opinion, that Korines, acting on his own,
was seeking to unilaterally change the agreed-upon terms and conditions of referring
substitutes for employment. Moreover, I find that in furtherance of this object, he altered
the markup sheet in an effort to avoid the fact that DeSimone had refused to grant
permission to have Flannery put up as a journeyman on the evening of October 31, 25
1992.
The actions of a shop steward (or for that matter any employee) who honestly and
reasonably seeks to enforce the terms of a collective-bargaining agreement constitutes
protected concerted activity within the meaning of Section 7 of the Act. See NLRB v. City
Disposal Systems, 465 U.S. 822 (1984), where the Supreme Court upheld the Board's 30
Interboro doctrine. [FN5] See also Howard Electric Co., 285 NLRB 911 (1987), and
Freeman Decorating Co., 287 NLRB 1235, 1239-1240 (1988).
* * *
In the present case, it is my belief that Korines was not honestly and reasonably
acting to enforce the terms and conditions of the existing collective-bargaining 35
agreement. On the contrary, I believe that he was acting with the intent of unilaterally
changing the terms of the agreement and the longstanding practice of the parties with
respect to the assignment of substitute journeymen and apprentices. To make matters
worse, I believe that the evidence warrants the inference that after Leotsakos left on the
evening of October 31, 1992, Korines altered a business record, namely, the markup 40
sheet, which is the document telling the night foreman, which employees are to be
assigned as journeyman and which are to be assigned as apprentices.
In conclusion, it is my opinion, that Korines was not engaged in protected activity and
that the threatened discharge by DeSimone was not unlawful within the meaning of
Section 8(a)(1) and Section 7 of the Act.45
In Carolina Freight Carriers Corp,. 295 NLRB 1080, 1083-1084 (1989), the General
Counsel argued two events led the respondent employer to reject employee Ward’s application
for regular employee status and to fire Ward and that they involved protected activity on Ward's
part. The specified events were: Ward's comments to a supervisor about the Thanksgiving 50
holiday; and Ward's insistence, on October 22, that he was entitled to 6 hours' work. The judge
JD–54–14
12
concluded with Board approval that as to the Thanksgiving holiday dispute that the respondent
acted against Ward because of Ward’s accusation to a supervisor that he was messing around
with Wards paperwork to “screw me out of my holidays.” The judge noted that the union
contract provided for holiday pay for bargaining unit members employed at least 30 days prior to
the holiday in question. The judge stated if a regular employee protested the respondent’s 5
failure to accord the employee a Thanksgiving holiday, the protest would fall within the
protections of City Disposal. However, Ward was complaining about delays in the processing of
his application, not about CFC's failure to grant the holiday to someone who was entitled to it.
The judge concluded in finding that Ward’s protest concerning the delay in his application did
not constitute concerted activity by stating:10
I suppose one conceivably could argue that the collective-bargaining agreement might
be read as prohibiting CFC from avoiding holiday pay obligations by delaying action on
job applications. Or rather, one could argue that it was not unreasonable for Ward to
believe that the agreement ought to be interpreted that way. But that seems farfetched 15
to me. The likelihood is that when Ward made his screw-me-out-of-my-holiday remark,
he knew that CFC had no contractual duty to process his application promptly. And
even if Ward did believe that some contractual duty was involved, that belief was too
unreasonable to serve as the basis for protected conduct.
20
In ABF Freight Systems, 271 NLRB 35, 36 (1984), the Board stated:
As noted above, in City Disposal, the Supreme Court affirmed the Interboro doctrine,
including the qualification that an individual employee's invocation of a collectively
bargained right must be reasonable and honest in order to bring it within the protection 25
of the Act. Taken as a whole, the evidence clearly establishes that, when Callahan
refused to drive the tractor-trailer unit assigned to him 30 July 1981 complaining that it
had faulty brakes and lacked required reflectors, he was not reasonably and honestly
invoking a collectively bargained right, but was obstructively raising petty and/or
unfounded complaints.[FN14] Thus, as more fully set forth above, the basis of Callahan's 30
complaint about the brakes on the truck assigned to him was his purported opinion,
which was contrary to the opinions of several other drivers and mechanics as well as
Callahan's business agent, that the brakes did not function properly in moving tests. The
honesty and reasonableness of Callahan's purported opinions about the truck's defects
are particularly suspect in light of his history of rejecting four times as many trucks as the 35
Respondent's other drivers, and the context and nature of Callahan's complaints indicate
that they were neither reasonable nor honest attempts to invoke a right secured in the
collective-bargaining agreement. Accordingly, we conclude that under the Interboro
doctrine, as affirmed by the Supreme Court in City Disposal, Callahan's refusal to drive
based on those complaints was neither concerted nor protected activity within the 40
meaning of Section 7 of the Act. We therefore further conclude that, by discharging
Callahan for his refusal to drive, the Respondent did not violate Section 8(a)(1) of the
Act.
Similarly, in Johnson-Stewart-Johnson Mining Co., 263 NLRB 123, 124 (1982) in 45
approving the dismissal of a complaint concerning the discharge of an employee, the Board
stated as follows:
It is undisputed that Martorana refused to operate his assigned truck on December 4
without making any effort to locate it on “the line” or to inquire if the requested repairs 50
were complete. It is further undisputed that Martorana refused to operate the truck
JD–54–14
13
without giving any reason to Respondent for that refusal and we note that Martorana,
even at the hearing, could not give any reason for having been so cavalier. Under these
circumstances, we find that Martorana's refusal to operate his assigned truck on
December 4 was not based on a reasonable belief that the truck was unsafe and that the
refusal was therefore not protected under the Act. Accordingly, we conclude that 5
Respondent's discharge of Martorana for refusing to operate the truck was not a
violation of Section 8(a)(1).[FN4]
Fn 4 Since Martorana’s refusal to drive his assigned truck on December 4 was not
protected conduct under the Act, we find it unnecessary to reach the issue of whether
the refusal constituted concerted activity.10
Thus, the Board has held that, grievance filing is protected conduct when an employee has “an
honest and reasonable basis for believing that he had standing to file a contractual
grievance…”. See, Laidlaw Transit, Inc., 315 NLRB 509, 513 (1994); and Regency Electronics,
276 NLRB 4, 5 at fn. 3, and 9 (1985). 15
In Nichols Aluminum, LLC, 361 NLRB No. 22, slip op. at 3 (2014), the Board stated:
Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to
hire, tenure, or any term or condition of employment in order to encourage or discourage 20
membership in a labor organization. To determine whether an adverse employment
action was effected for prohibited reasons, the Board applies the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under Wright Line, to establish unlawful discrimination on the basis of
union activity, the General Counsel must make an initial showing that antiunion animus 25
was a substantial or motivating factor for the employer's action by demonstrating that: (1)
the employee engaged in union activity; (2) the employer had knowledge of that union
activity; and (3) the employer harbored antiunion animus. Amglo Kemlite Laboratories,
360 NLRB No. 51, slip op. at 7 (2014).[FN7] Proof of animus and discriminatory motivation
may be based on direct evidence or inferred from circumstantial evidence.[FN8] If the 30
General Counsel makes his initial showing, the burden shifts to the employer to show
that it would have taken the same action even in the absence of the employee's
protected activity. Id.
With respect to the General Counsel's initial showing, it is undisputed that Bandy
engaged in protected activity by participating in the January-April strike and that the 35
Respondent was aware of that activity. At issue is whether the General Counsel
demonstrated that the Respondent harbored antiunion animus, thus meeting his initial
burden.
Similarly, in Hitachi Capital America Corp., 361 NLRB No. 19, slip op. at 1 (2014), the Board 40
stated:
We affirm the judge's finding that the Respondent violated Section 8(a)(1) by
discharging employee Virginia Kish. We agree with the judge that the General Counsel
met his initial evidentiary burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 45
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The record establishes that
Kish engaged in protected concerted activity when she sent several emails to
supervisors and/or agents of the Respondent questioning the Respondent's new
Inclement Weather Day (IWD) policy on February 3, 2011; that the Respondent knew or
suspected that Kish's activity was concerted; and that the Respondent demonstrated 50
animus towards Kish's protected activity by giving her a warning concerning her
JD–54–14
14
emails.[FN4] We also agree with the judge, for the reasons stated by her, that the
Respondent failed to show, under Wright Line, that it would have discharged Kish even
in the absence of her protected concerted activity.
It is clearly part of the General Counsel’s burden of proof in its prima facie case to 5
establish Prophet was engaged in protected and concerted activity when he filed a grievance
over his schedule change. In order to meet this burden, the General Counsel must show that
Prophet filed the grievance with a reasonable and honest belief that his rights under the
collective-bargaining agreement were violated. For the reasons set forth below, I have
concluded the General Counsel has failed to meet its burden of establishing that Prophet’s filing 10
of the grievance was protected concerted activity under the Act.
The facts reveal that on August 3, by email Respondent announced its schedule for the
D.C. Department of Transportation building for security guard Prophet to work 32 hours for the
week of August 5 to 11, with Prophet working 8 hours each on Saturday and Sunday of that 15
week. On August 3, Prophet sent an email to Respondent concerning his scheduled weekend
shifts on August 10 and 11 stating, “I start a new part-time job next week Saturday and Sunday.”
On August 4, Respondent, in an accommodation to Prophet, issued a revised schedule
replacing him with two other guards for the upcoming Saturday and Sunday shift. Thus,
Respondent changed the schedule of two other guards on short notice to accommodate 20
Prophet’s new other employment.
On August 28, Profit sent Akingbade an email stating, “the weekend job didn’t work out
so I’m free for weekends.”6 On August 29, Akingbade reacted strongly to Prophet’s August 28
request by sending an email to Prophet stating, “You do not expect this Company to submit to 25
your manipulation by inconveniencing our single-mindedly loyal employees in order to suit your
change of fortune on your ‘new jobs’. We have adhered to your wish to quit weekend
assignments and we made our plan, long term, to exclude you on weekends accordingly. If we
ever need your services on any weekends or occasions, we’ll let you know.”
30
On September 5, union representative Orellana sent Akingbade an email stating she
was attaching a “Grievance Initiation” letter regarding Prophet. Orellana stated, “Mr. Prophet
reported to us when he was going to start his vacation two weeks ago, he received notice
about change in position. When he returned to work last week only scheduled now for 16
hours instead of 32 as he had before.” The attached grievance stated, in pertinent part:35
Claim #1: Member claims that his/her hours of work were or will be changed without
sufficient cause or reason effective 8/12/13. The Union seeks that the Employer be
directed to restore the member to his/her original work hours without loss in pay,
benefits, and seniority.40
And in order to conduct our investigation into the merits of this grievance, please
forward your personnel file concerning Mr. Prophet to the Union office by Sept. 12th,
2013.
The first step of the grievance procedure is an informal hearing. After a
determination that the grievance has merit, the Union will seek to schedule such a 45

6 The clear import of Prophet’s email that the weekend job did not work out, signals that if it
had worked as Prophet had planned he would have been unavailable to work for Respondent
on weekends on a permanent basis. This is confirmed by the fact that Prophet did not state in
his August 3 email that he was requesting off only for the weekend of August 10 and 11.
JD–54–14
15
hearing. If the matter cannot be resolved through an informal hearing, the matter may
proceed to arbitration to resolve the dispute.
On September 7, Akingbade sent the Union an email responding to Prophet’s grievance.
Akingbade stated as follows:5
1. OFFICER ROGER PROPHET has lied to you (that he did not know why his assignments
had reduced)-- and we will not take it likely. It was he who took himself out of his weekend
duties (see his email dated 8/03/13 far underneath) when he informed us five weeks ago that
he had secured a new job with another company on weekends. He followed up his email by 10
calling on and telling our Office Staff to insure that he was not deployed any more weekends.
We complied by taking him off his weekend assignments accordingly.
2. To our surprise, we received an email 8/28/13 from Officer Prophet, below, telling us his
new job had collapsed and wanted his weekend assignment back--25 days after he secured
the new job. Our response saying “No, but...” dated 8/29/13 is reproduced below. 15
3. His loyalty already came into question when, by his email dated 8/3/13, he informed us
that he had chosen a new job in preference to ours on weekends; yet, we did not penalize
him as we allowed him to retain his other shifts. This statement he made to SEIU 32BJ
shows him as a barefaced liar and I am not too sure if it is safe to allow his lying to go
unchallenged; it is possibly a symptom of worse developments waiting to occur, perhaps 20
soon. We’ll test the water and have him queried accordingly.
We should like to know why his new employer dropped him after 25 days, in case the
reason (e.g. if due to lying) is germane to the basis of his employment here. BRSS, as a
policy, does not hire someone who was rejected by their former employer.
We are sure that SEIU32BJ will be on our side in fishing out any undesirable element in 25
this Company— one who had the audacity to come to you and has caused you and his
Management to spend our scarce time on a matter that is all a lie!
On September 25, without conducting a meeting over the grievance with Respondent,
the Union sent Prophet a letter stating, in part30
We have carefully reviewed the facts and circumstances surrounding your grievance
and have determined that it lacked sufficient merit for the Union to be likely to prevail in
arbitration. For that reason, it is not in the interest of the Union and its membership to
carry this case forward to arbitration.7 35
On October 8, Akingbade sent an email to Prophet stating the grievance Prophet filed
against Respondent alleged that Respondent slashed Prophet’s hours from four shifts to two
shifts after Prophet’s “return from vacation.” Akingbade pointed out that Prophet did not state
that it was actually Prophet who, by email, asked Respondent to cancel Prophet’s two weekend 40
shifts because Prophet was starting a new job the next Saturday and Sunday. Akingbade
stated that Prophet followed up the email with a call to Respondent’s office assistant telling her
to cancel Prophet’s August 10 and 11 assignments because Prophet was starting a job with
another company on weekends. Akingbade pointed out the office assistant had to take the
trouble to rearrange Respondent’s schedule for that week to accommodate Prophet’s 45
cancellation demand. He stated the cancellation impacted other officers who had to be
displaced and deployed to fill Prophet's vacated two shifts. Akingbade pointed out that on
August 28, Prophet sent Respondent a new email stating that he had lost his new weekend job
requesting his prior shifts back. Akingbade stated that he responded by email on August 29
denying Prophet’s “untenable, manipulative request.” Akingbade stated on September 5, 50

7 The Union’s letter dropping the grievance was not copied to Akingbade, who did not learn
of the Union’s decision until he attended an unemployment hearing for Prophet on December
11, which Prophet also attended.
JD–54–14
16
Respondent received Prophet’s “grievance falsely claiming that it was because you went on a
vacation that we took the Saturday and Sunday assignments from you!” He stated, “We are
pained by your barefaced lie against this company…”. He went on to state, “hence we hereby
request you to explain why a severe disciplinary action (including but not limited to termination)
should not be taken against you for lying against this Management and for portraying your 5
employer in bad light to the esteemed SEIU 32BJ Union. This Management takes lying by a
security officer very seriously. It destroys the trust our employees should expect to enjoy from
us, their employer; and it is our firm belief that an employee who lies against his employer (to
whom he is responsible for his/her means of livelihood) can, with considerable comfort, lie
against any other person including our clients and members of the public; very easy against 10
his/her fellow co-workers.” Akingbade pointed out that lying or dishonesty is in contravention of
various provisions in Respondent’s handbook, and stated that since Prophet had made a false
accusation against Respondent, they had begun to review Prophet’s overall record. He stated,
“We hope to conclude the exercise soon after the receipt of your response expected within 48
hours ending 7.30am Thursday 10/10/13.” Akingbade stated, “FAILURE to respond is, in itself; 15
a serious infraction under cited provisions in the handbook, and amounts to insubordination.
Prophet did not respond to Akingbade’s October 8 email. However, Akingbade met with
Prophet on October 10 in person concerning a stolen laptop at the worksite where Prophet was
working. Akingbade testified he did not suspect Prophet of stealing the laptop, but during the
meeting Akingbade renewed his request to Prophet for a response to Akingbade’s October 8 20
email, to which Prophet again failed to respond.
On October 18, Akingbade sent an email to Prophet stating that even though the
deadline of October 10 had passed for Prophet’s response to Akingbade’s October 8 email, as a
concession to Prophet, Akingbade was giving him until October 19 to respond. It stated, 25
“Otherwise, we shall take your lack of response by 11.1 am tomorrow 10/19/13 as an admission
of all the charges leveled against you in our said query and shall go ahead to take an
appropriate decision in line with the Company’s policies, rules and regulations as contained in
the BRSS HANDBOOK including what were liberally cited in our said query.” Prophet did not
respond and on October 19, Akingbade sent Prophet a letter of termination by way of email, 30
effective immediately. The email stated despite multiple reminders that Prophet had failed to
respond to Respondent’s query.
On December 11, both Prophet and Akingbade appeared for a D.C. government
administrative law judge concerning Prophet’s appeal for a prior denial of unemployment 35
benefits. A hearing was held before the judge on December 11, at which both Prophet and
Akingbade attended. The D.C. judge stated in her decision that Akingbade stated Respondent
discharged Prophet because he interpreted Prophet’s failure to respond to his inquiries as
dishonesty and considered Prophet’s failure to respond as insubordination. The D.C. judge
went on to state:40
It is undisputed that Claimant (Prophet) asked to be removed from the weekend
scheduled to work another job. It is also undisputed that Claimant filed a grievance
stating that Employer reduced his hours. In Claimant’s testimony, he admitted that he
asked Employer to remove him from the weekend schedule so that he could work his 45
other job. Despite this, Claimant asserts that his statement in his grievance that
Employer reduced his hours upon return from vacation was truthful. On this record, I
find that Employer established that Claimant was not truthful to the Grievance Board in
the reason why his hours were reduced. Claimant provided no mitigating reason why he
made the statement.50
The D.C. judge went on to state, “I do find that Claimant breached his obligation to be truthful to
and about Employer. Therefore, under the facts of this case, I conclude that Employer
JD–54–14
17
established that Claimant’s dishonesty was simple misconduct.” The Board has held that
decisions from state unemployment offices, although not controlling, have some probative value
in Board proceedings. See, Western Publishing Co., Inc. 263 NLRB 1110 fn. 1 (1982).
As set forth above, I do not find the General Counsel has met his burden of establishing 5
that Prophet filed grievance over his schedule change with a reasonable and honest belief that
his rights under the collective-bargaining agreement were violated. It is clear that Prophet
asked off his weekend shifts because as he reported to Respondent that he had obtained other
weekend work. Respondent accommodated Prophet’s request by, on short notice, rescheduling
other guards to cover his shifts. When on August 28, Prophet lost his other weekend job and 10
requested his weekend shifts back, he was met with a denial of the request and a somewhat
angry response from Akingbade who felt that Prophet was disloyal for making the request in the
first place and that Prophet’s losing his interim employment raised competency questions to
Akingbade. On September 5, Akingbade received a grievance from the Union concerning
Prophet’s loss of shift hours, while the grievance was nonspecific as to the basis of the claim, 15
the cover letter from the Union accompanying the grievance stated, “Prophet reported to us
when he was going to start his vacation two weeks ago, he received notice about change in
position. When he returned to work last week only scheduled now for 16 hours instead of 32
as he had before.” On September 7, Akingbade informed the Union that Prophet had lied to
them, and that it was Prophet who took himself off weekend duties when he informed 20
Respondent he had obtained another job.
I find Prophet’s, statement as reported by the Union to Respondent, constituted a clear
misrepresentation either directly or by omission and that it was reasonable for Akingbade to
interpret it as such. The clear import of it was that Prophet was claiming that he had been 25
removed from weekend shifts as a result of his taking vacation time, as opposed to his having
requested off the shifts because he had obtained alternate employment. I do not find that
Akingbade needed anything further then the letter accompanying the grievance from the Union,
in combination, with Prophet’s prior actions to conclude that Prophet had credibility problems.
Akingbade’s conclusion that Prophet had fabricated to the Union was subsequently confirmed 30
when the Union received Akingbade’s response accusing Prophet of lying it quickly dropped the
grievance. Moreover, the findings of the D.C. judge who conducted a hearing over the matter
and who heard Prophet testify concerning his statement to the Union’s grievance board
concluded that Prophet “was not truthful to the Grievance Board in the reason why his hours
were reduced” and that Prophet “provided no mitigating reason why he made the statement.”35
While the findings of the D.C. judge are not binding on me, they are instructive, and they
serve to confirm what I previously concluded that Prophet was untruthful to the Union’s
grievance Board. Moreover, while General Counsel cites a provision in the collective-bargaining
agreement regarding seniority, there was no evidence presented that Prophet was aware of the 40
provision at the time he filed his grievance, or that he was even replaced by less senior
employees. The provision itself mentions seniority but states it shall be determinative “only
when all other job-related factors are equal.” There was also no contention here that Prophet
believed that guards who had replaced him on his weekend shifts had less seniority. I have
concluded that there was no such contention raised by Prophet to the Union. Thus, the General 45
Counsel did not call Prophet to testify and there was no basis for me to conclude that his
grievance was pinioned on anything but a misrepresentation, and I am not persuaded that he
filed grievance with a reasonable and honest belief that his rights under the collective-
bargaining agreement were violated. Accordingly, I do not find that he was engaged in
concerted or protected activity when he filed the grievance. See, NLRB v. City Disposal 50
Systems, 465 U.S. 822 (1984); Newark Morning Ledger, 316 NLRB 1268, 1271-1272 (1995);
JD–54–14
18
Laidlaw Transit, Inc., 315 NLRB 509, 513 (1994); Carolina Freight Carriers Corp., 295 NLRB
1080, 1083-1084 (1989); Regency Electronics, 276 NLRB 4, 5 at fn. 3, and 9 (1985); ABF
Freight Systems, 271 NLRB 35, 36 (1984); and Johnson-Stewart-Johnson Mining Co., 263
NLRB 123, 124 (1982).
5
I also find Akingbade, who runs a multi-site security company guarding government
buildings, has established he has a reasonable and high priority of maintaining a workforce with
employees of high integrity, both from the D.C. government contract which he testified about at
the hearing, and from the very nature of the work being performed. Thus, I do not find that
Akingbade’s questioning of Prophet as to why he lied to the Union, with the threat of discipline 10
or discharge for his failing to respond was violative of Section 8(a)(1) of the Act. First, I have
concluded that Prophet’s contacting the Union in the circumstances here did not constitute
statutory protected conduct, and therefore the questioning Prophet about it was not violative of
the Act. Moreover, I find that Akingbade did not react to the fact that Prophet had filed a
grievance, but rather to the untruthful nature of Prophet’s complaint. In this regard, Akingbade 15
has established a substantial business interest in maintaining a work force with employees of
high integrity. While Akingbade did not terminate Prophet until he repeatedly refused to answer
Akingbade’s queries as to his truthfulness, I do not that to be determinative here. As it was
Akingbade’s reasonable belief as to Prophet’s misrepresentation that led to the queries, and the
fact that Akingbade repeatedly offered Prophet the opportunity to rehabilitate himself with his 20
employer should not alter the ultimate outcome of this case.
I do not find cases cited by the General Counsel such as OPW Fueling Components,
343 NLRB 1034, 1036-1037 (2004), enfd. 443 F.3d 490 (6th Cir. 2006), cert. denied 549 U.S.
1054 (2006), require a different result. There, employee Cox was a union bargaining 25
committeemen who was signatory to the parties’ current collective-bargaining agreement. In his
position, Cox also processed grievances for the union. Cox was discharged after he wrote,
without their permission, the signatures of two bargaining unit employees on a grievance
relating to their seniority and recall rights. The employees protested their signatures on the
grievance, and in the Board’s decision the following was stated:30
Cox had the testimonial demeanor of a truthful witness. He admits that he should
have placed his initials by the employees' signatures, as he did on another grievance, or
indicate that the Union was the aggrieved party, as he did on the amended grievance.
Cox also exhibited a strong, unyielding, sense of conviction in his beliefs when testifying 35
about the substantive collective-bargaining issues underlying his initial Board charge and
the grievance. I have no doubt that Cox was motivated in filing the grievance by nothing
more than his sincerely held good-faith belief that his interpretation of the collective-
bargaining agreement was correct. He filed the grievance solely to preserve the Union's
right to pursue what he believed was the correct interpretation of the recall provision in 40
the collective-bargaining agreement. There is no evidence that Cox would, or could,
profit or gain anything from deceiving the Respondent. There is no evidence that Cox
held any resentment or had any reason to be vindictive towards the named employees.
The Respondent offers that “the only way that Cox could resurrect the settled issue of
recall rights was to submit to the Company a bogus grievance that was ‘signed’ by two 45
employees allegedly grieving the matter.” (R. Br. at 26.) The facts are contrary. The
amended grievance, which did not contain named employees, was processed by the
Respondent. Regardless, the resolution of the grievance, as advocated by Cox, would
have gained him nothing.
Even absent my finding that Cox was acting in good faith, the reality of the grievance 50
process in this case is such that no union official, especially not one as experienced as
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19
Cox, could possibly think that such a blatant deception could achieve any objective.
Under the very best scenario the ruse would be discovered when the employees were
told to return to their former positions, and the chance of the deception progressing that
far is slight, if at all. Management knew that the employees did not want to return to
OPWFC, and Cox made it clear to Orewiler that he would file a grievance if the recall 5
was not corrected or if the Union was not allowed time to obtain input from the
International. If his intent was to deceive, it is doubtful that he would give advanced
notice of the deception, nor is there evidence that anyone was either deceived or
harmed by his action.
I find, based on the foregoing, that Cox's act of signing employees' names to a 10
grievance was part and parcel of the grievance procedure and as such was protected
concerted activity. Roadmaster Corp., above at 1197. I also find, as set forth above, that
his conduct was not sufficiently egregious to remove his grievance-filing activity from the
protection the Act.
15
Thus, in OPW Fueling, employee Cox was a long time union official who had improperly
affixed the signatures of two bargaining unit employees to a grievance. However, Cox
testimony revealed that Cox had filed the grievance based on a good faith belief of his
interpretation of the collective-bargaining agreement, and in order to preserve the Union’s right
to pursue that interpretation. Thus, the grievance was filed in good faith based on a reasonable 20
belief as to the application of the applicable collective-bargaining agreement, and therefore
constituted protected conduct. Once it was established that the grievance constituted protected
conduct, it was concluded that Cox improperly affixing the signature of the two bargaining unit
employees was not so egregious as to remove Cox from the protections of the Act. The instant
case is clearly distinguishable. Here, Prophet did not testify, and there was no evidence 25
presented to establish his good faith belief that the collective-bargaining agreement had been
violated when he filed his grievance. In fact, the only evidence presented consistently reveals
the grievance was solely founded on a misrepresentation, including the facts leading up to
Prophet’s schedule change, the wording of the Union’s cover letter to Respondent concerning
Prophet’s grievance, the Union’s quick dismissal of the grievance when Akingbade accused 30
Prophet of lying and providing documents to support the accusation, and Prophet’s being
discredited by the D.C. Unemployment judge who found that Prophet misrepresented what took
place to the Union’s grievance committee. Since the General Counsel failed to establish that
Prophet filed the grievance on a reasonable and good faith belief that the collective-bargaining
agreement had been violated, I have concluded that in the circumstances here the filing of the 35
grievance did not constitute protect conduct within the meaning of the Act. Therefore, there is
no need to address whether Prophet’s fabrication was so egregious to remove him from the
Act’s protection from his otherwise protected conduct.8
Here, the General Counsel failed to call Prophet as a witness and contends what 40
Prophet told the Union concerning his grievance is privileged information. The General Counsel
cites National Telephone Directory Corp., 319 NLRB 420, 420-421 (1995), in support of this
proposition. There, a respondent employer served on a union a subpoena seeking the
production of authorization cards signed by the respondent’s employees. The Board in denying
the respondent access to the requested information both in response to the subpoena and 45

8 Similarly, United Parcel Service of Ohio, 321 NLRB 300, 325 (1996), cited by the General
Counsel in his brief is distinguishable from the current case because there the judge found that
the “grievants held honest and reasonable beliefs they were entitled to exit Respondent's
premises free from the described problems and with pay for the delay's occasioned by the
device and the guards' behaviors.”
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20
questioning at trial stated, “We find, for the reasons set forth below and in agreement with the
General Counsel and the Union, that the confidentiality interests of employees who have signed
authorization cards and attended union meetings are paramount to the Respondent's need to
obtain the identities of such employees for cross-examination and credibility impeachment
purposes.” The Board referenced the privileged nature concerning an employee’s signing of an 5
authorization card. The Board was concerned with the possibility of intimidation of employees if
their identities were disclosed.
I find National Telephone Directory Corp., supra, to be inapposite to the facts presented
in this case. Prophet’s grievance filing was not a secret. In fact, it was filed on the basis that 10
Respondent would be notified that it took place. Thus, what information Prophet informed the
Union as to the basis of its filing would have been expected to be disclosed to Respondent
during the course of the grievance process had the grievance continued. The grievance has
also been dropped here, so there is no argument that keeping the reason for the grievance a
secret is somehow based on a strategy for successfully processing the grievance. Finally, the 15
reasons Prophet advanced to the Union for the filing of the grievance are part and parcel of the
res gestae of Prophet’s purported protected conduct; that is that he had a reasonable basis for
the filing of the grievance under the contract and that it was filed in good faith. The General
Counsel’s argument here would eviscerate that requirement. The General Counsel has failed to
establish any reason the grievance was filed here, other than it being totally premised on a 20
misrepresentation as I have found for the reasons previously stated. This conclusion is only
confirmed by Prophet’s failure to be called as a witness to explain that he had a reasonable and
good faith belief in filing the grievance that the contract was violated, and if so on what that
belief was premised.
25
This decision should not be read by Respondent that it has broad license to question
employees about their grievance filing activities. In this regard, the case law does not require
an employee to be correct in terms of the outcome of the grievance, or in their interpretation of
the contract. It also does not require them to be completely truthful in every aspect of their
claim as the General Counsel points out. It merely requires that the employee has a reasonable 30
basis and good faith belief that their contractual rights have been violated when they file a
grievance. Had I found this had been established here, I would have recommended a finding of
a violation of Section 8(3) and (1) of the Act concerning the Respondent’s questioning,
threatening, and subsequently discharging Prophet for his refusal to answer questions about his
grievance activity. However, since I have concluded it has not been established that Prophet 35
engaged in protected concerted conduct, I have therefore concluded the complaint should be
dismissed.
On the basis of the foregoing, I shall recommend that the complaint be dismissed in its
entirety. 940
CONCLUSIONS OF LAW
1. The Respondent has not violated the Act, as alleged.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD–54–14
21
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.
ORDER
The complaint is dismissed in its entirety.5
Dated, Washington, D.C., September 11, 2014
_______________________
Eric M. Fine10
Administrative Law Judge