Security Walls, LLC

National Labor Relations Board - Board Decisions

Feb 2, 2011

356 N.L.R.B. 596 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
Security Walls, LLC and Orlando Franco. Case 28–
CA–22483
February 2, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On November 25, 2009, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The General Counsel and the Respondent each filed ex-
ceptions, a supporting brief, an answering brief, and a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
I. OVERVIEW
The judge found that the Respondent violated Section
8(a)(1) of the Act by maintaining two overly broad con-
fidentiality rules in its employee handbook, but that the
Respondent did not violate Section 8(a)(1) by terminat-
ing employee Orlando Franco and issuing warnings to
employees Royal Jacobs and Jeff Ortega. We agree with
the judge, for reasons she stated, that the Respondent’s
maintenance of the confidentiality rules violated the
Act.1 We find, however, that the Respondent’s discipline
1 One of the rules found unlawful provides that “[i]n cases involving
a report of harassment or discrimination, all reasonable efforts will be
made to protect the privacy of the individuals involved. . . . Employees
who assist in an investigation are required to maintain the confidentiali-
ty of all information learned or provided. Violation of confidentiality
will result in disciplinary action.” The Board has stated that, if an
employer’s rule explicitly restricts Sec. 7 activity, it is unlawful, and
even if it does not explicitly restrict Sec. 7 activity, it is nevertheless
unlawful if employees would reasonably construe the rule to prohibit
protected activity. Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). Member Hayes would find that an employer can lawfully
maintain a rule that allows employees, during the course of an investi-
gation of an allegation of harassment or discrimination, to provide
information to the employer with the assurance of confidentiality and
which provides reasonable protections for the accused. The rule here,
however, could reasonably be read to forbid employees from speaking
among themselves or to third parties about such complaints and it is
therefore overly broad.
In its exceptions, the Respondent argues only that its maintenance of
the rules was not unlawful because employees talked freely and without
restraint about the topics covered by the rules. There is no merit in that
argument. “[T]he law is clear that the mere existence of such a rule,
even if it is not enforced, constitutes an unlawful interference with
employees’ Section 7 rights, in violation of Section 8(a)(1) of the Act.”
Cintas Corp., 344 NLRB 943, 946 (2005). In its reply brief, the Re-
spondent contends that the rule described in the previous paragraph is
“necessary to protect the integrity of the investigatory process.” We
shall not consider this contention because it is outside the scope of the
of Franco, Jacobs, and Ortega was unlawful. Contrary to
the judge, these employees did not lose the protection of
the Act when they concertedly refused to work voluntary
overtime in protest of the Respondent’s prior offer of
overtime to a part-time employee. We therefore reverse
the judge and find that the Respondent violated Section
8(a)(1) by warning Jacobs and Ortega and by terminating
Franco for engaging in protected concerted activity.2
II. FACTS
The Department of Energy (DOE) operates the Waste
Isolation Pilot Plant (WIPP) for the disposal of industrial
nuclear waste. The DOE contracts with Washington Tru
Solution LLC (WTS) to manage the facility. The Re-
spondent began to provide security as a subcontractor of
WTS at the site in April 2008. It retained the Security
Police Officers (SPOs) of the predecessor security sub-
contractor.
There are approximately 20 SPOs. Their primary du-
ties are to control access to the facility and to protect the
site and its occupants. The WTS contract also requires
that the Respondent must have at least two fire-brigade
qualified employees available on each 12-hour shift to
support onsite emergency response teams. As of Febru-
ary 20, 2009, only 50 percent of the Respondent’s SPOs
were fire-brigade certified.
The SPOs’ performance of overtime work was volun-
tary. The Respondent continued the predecessor’s meth-
od of soliciting employees to work voluntary overtime
based on a list of cumulative overtime hours worked by
each SPO. The employee who had worked the least
amount of overtime was given the first opportunity to
work overtime. Any employee who declined an over-
time offer would move to the bottom of the list. Howev-
er, if the Respondent could not reach an employee, or the
employee did not respond to a voice mail message re-
garding overtime availability, the employee’s position on
the list remained unchanged. Therefore, an employee
who did not want overtime, but who wanted to retain his
or her place on the list, would neither answer the phone
nor respond to messages regarding overtime. The Re-
spondent’s project manager, Richard De Los Santos,
testified that he was not aware of such a practice until
after the incident discussed below.
General Counsel’s answering brief and is therefore not properly before
us. See Sec. 102.46(h) of the Board’s Rules and Regulations; B & B
Trucking, 345 NLRB 1 fn. 1 (2005).
There are no exceptions to the judge’s finding that the rule in the
Respondent’s employee handbook prohibiting employees from copying
or disclosing certain company files and records was not unlawful.
2 We shall modify the judge’s recommended Order and notice to
provide the appropriate remedies for the violations found.
356 NLRB No. 87

SECURITY WALLS, LLC 597
As of February 16, 2009,3 an SPO was needed for
fire-brigade coverage for the night shifts of February 24,
25, and 26. SPO Jeff Ortega volunteered but was in-
formed that part-time SPO Julie Ruiz had first choice and
would work the overtime. Ruiz was working part time
for the Respondent as a second job and would have re-
ceived only regular pay rather than the overtime pay that
full-time SPOs would earn. On February 23, SPO Or-
lando Franco called Ruiz and told her that she “needed to
lay off the overtime.” Ruiz told Franco that she was not
working overtime on February 24, as she was working
her regular job that night. Franco was on speakerphone
when he made the call, and Ortega was with him.
Franco, Ortega, and SPO Royal Jacobs subsequently
discussed their concerns about the overtime offer to
Ruiz. In protest of the offer to a part-time SPO at regular
pay rates, they agreed that they would not work the up-
coming overtime shift and would not answer telephone
calls from the Respondent’s officials. At the end of their
regular shift in the morning of February 24, Captain Ste-
ve Soto asked them if they wanted to work that evening,
stating that fire-brigade coverage was needed. The em-
ployees told Soto that, if the Respondent did not want to
pay overtime and was not going to offer the overtime to
full-time employees first, it could find someone else to
work the overtime. They also told Soto that the Re-
spondent should not even bother calling them regarding
the overtime. Nonetheless, the Respondent attempted to
telephone all three employees several times during that
day and left messages asking them to work overtime.
Franco and Jacobs did not respond to the Respondent’s
telephone calls and messages about overtime. Ortega
tried to respond, intending to tell Soto to stop calling
him, and left a message for Soto to return his call. In the
end, WTS covered the position with its own personnel.
Also on February 24, Ruiz told De Los Santos about
the call she received from Franco. Ruiz testified that De
Los Santos responded that “he had had enough of Fran-
co.” Franco was terminated that evening. His termina-
tion notice stated that “[a] complaint has been filed with
the Company regarding misconduct on your part. . . .
Your incessant complaining and continuous agitation and
harassment of your fellow workers has created a negative
and hostile working environment.” There is no express
reference in the notice to the overtime issue. However,
at the hearing in this case, De Los Santos testified that
that phone call to Ruiz was the catalyst for the termina-
tion but that he discharged Franco for leading a “conspir-
acy of the three of them” to compromise the Respond-
ent’s contract and sabotage its mission.
3 All dates are in 2009, unless otherwise indicated.
Jacobs and Ortega received identical written warnings
dated February 27. The warnings stated:

On February 24, 2009, several attempts were made to
contact you . . . to offer an opportunity to work over-
time on that evening shift. Messages were left yet you
did not return the call. . . . [W]e are on call to respond
to emergency on a 24 hour 7 day per week basis. For-
tunately this was not an emergency. However we were
unable to meet our contractual obligation of providing
Fire Brigade support for that shift as a result of your
failure to respond. You were aware that we would
need overtime support . . . yet you chose to ignore the
calls. . . . We are aware that we cannot require you to
work incidental overtime but we do expect the courtesy
of a return call to advise us if you are able to work or
not . . . .

De Los Santos testified that, had the employees re-
turned the calls, the Respondent could have explained to
WTS that it could not get anyone to work, as the Re-
spondent could not require the employees to work over-
time. He further testified that he soon rescinded the
warning to Ortega after verifying that Ortega had re-
turned a call on February 24. He acknowledged that
around that same time Jacobs explained the existing
overtime procedure to him. De Los Santos testified that
Jacobs’ warning was rescinded shortly before the hearing
because it was based on an incorrect assumption that
there was a policy requiring employees to return tele-
phone calls about overtime.
III. DISCUSSION
The judge found that the SPOs’ conduct on February
23 and 24 was the motivation for the discipline.4 For all
three employees, this conduct included the refusal to
work overtime and to answer telephone calls or respond
to voice mail inquiries about their availability to work
overtime on February 24. The judge found that the re-
fusal to work overtime was unprotected. In so finding,
she apparently relied on two separate theories: (1) that
the employees were attempting to unilaterally determine
their terms and conditions of employment with respect to
overtime assignment;5 and (2) that the employees’ failure
to take reasonable precautions to protect the Respondent
and the WIPP jobsite from “foreseeable imminent dan-
ger” was “indefensible.” We disagree with the judge that
4 The Respondent does not except to this finding.
5 E.g., House of Raeford Farms, 325 NLRB 463 (1998) (employees
engaged in unprotected walkout rather than work mandatory overtime
on a holiday).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
either theory warrants finding the employees’ conduct
unprotected in this case.6
A.
In finding that the three SPOs were selectively trying
to determine their own terms and conditions of employ-
ment, the judge critically erred by failing to recognize the
significant and undisputed fact that the overtime assign-
ments at issue were not mandatory. As stated in St.
Barnabas Hospital, 334 NLRB 1000 (2002), enfd. NLRB
v. St. Barnabas Hospital, 46 Fed Appx. 32 (2d Cir.
2002), “[t]he Board has long held that a refusal to per-
form voluntary work does not constitute an unprotected
partial strike.” The judge in that case, citing Dow Chem-
ical, 152 NLRB 1150, 1152 (1965), noted that, where an
employer permits employees to decide whether they wish
to perform the work, it cannot be said that “employees,
by refusing to volunteer for work, lost the protection of
the Act because they sought to impose on their employer
their own conditions of employment.” 334 NLRB at
1012.7
In Jasta Mfg. Co., 246 NLRB 48, 49 (1979), enfd.
mem. 634 F.2d 623 (4th Cir. 1980), the Board also found
that a respondent violated Section 8(a)(1) by discharging
employees who would not work voluntary overtime after
the respondent changed the hours of overtime. There,
the Board noted that, although the respondent told the
employees that they were expected to work the new
hours, it never warned them that their failure to work
overtime would result in discipline, and therefore the
employees could reasonably assume that overtime re-
mained voluntary.
At the time of the events in this case, it was well estab-
lished that overtime was voluntary, and there is no evi-
dence that the employees were told on February 24 that
the overtime was now mandatory. Significantly, in the
warnings issued to Ortega and Jacobs, the Respondent
stated that it was aware that it could not require them to
6 The judge erred in finding effectively that Franco, Ortega, and Ja-
cobs were not engaged in concerted activity when they refused to work
overtime. Their refusal to work voluntary overtime was group action in
protest of the Respondent’s overtime offer to Ruiz, and therefore was
concerted activity under Sec. 7.
7 The decisions cited by the judge are thus distinguishable from this
case. In both House of Raeford Farms, Inc., 325 NLRB 463 (1998),
and Bird Engineering, 270 NLRB 1415 (1984), employees were law-
fully discharged for leaving work in violation of workplace rules. The
Board found that, by doing so, the employees were attempting to set
their own terms and conditions of employment. In Chep USA, 345
NLRB 808 (2005), the Board found that an employee was lawfully
terminated for violating a work rule. It explicitly declined to decide
whether the employee’s conduct was unprotected either because it
constituted a partial strike or because it amounted to an attempt by the
employee to unilaterally determine working conditions. Id. at 808 fn.
5.
work incidental overtime. The warnings were based on
the failure of the two employees to return calls to advise
the Respondent whether they were able to work. How-
ever, De Los Santos acknowledged in his testimony that
there was no policy requiring that the employees respond
to messages left for them about overtime. In fact, it was
an established practice for employees not to respond to
messages offering overtime if they wanted to retain their
position on the overtime list. In any event, Ortega, Ja-
cobs, and Franco had already informed Captain Soto,
their supervisor, that they would not work overtime on
February 24. Under these facts, the discriminatees were
not engaged in an unlawful attempt to set their own terms
and conditions of employment.
B.
In finding that the employees’ conduct was “indefensi-
ble,” the judge discusses International Protective Ser-
vices, 339 NLRB 701, 702 (2003), relied on by the Re-
spondent for the proposition that the test of whether a
strike loses statutory protection is whether the employees
took “reasonable precautions to protect the employer’s
operations from such imminent danger as foreseeably
would result from their sudden cessation of work.” Id.
We find that the employees’ refusal to work voluntary
overtime was not “indefensible” under that standard.
First, there was no “sudden cessation of work.” The em-
ployees left their regular shift as scheduled on the morn-
ing of February 24. As they were leaving, they informed
Captain Soto that they would not be available for over-
time that evening, and that the Respondent should not
bother to call them about working overtime.8
Second, there is no evidence that the employees’ re-
fusal to work overtime posed any danger—imminent or
otherwise—to the Respondent’s operations. Although
the Respondent is required under its subcontract with
WTS to have two fire-brigade qualified employees avail-
able to cover each shift, the WIPP facility has its own
fire department and WTS apparently also had personnel
to fill in on February 24 if the Respondent’s SPOs were
not available to support those firefighters. Thus, the ab-
sence of fire-brigade SPOs did not leave the facility
8 In this respect, the SPOs’ refusal to work overtime differs from the
conduct found unprotected in International Protective Services, supra,
and Akal Security, Inc., 354 NLRB 122 (2009), adopted in 355 NLRB
598 (2010), cited by the judge. The Board found that the union in
International Protective Services abruptly called a strike at a time and
in a manner designed to compromise the security of the facility and its
occupants. No such evidence exists here. In Akal Security, several
guards violated a number of work rules in calling an impromptu meet-
ing while on duty. In finding their conduct unprotected, the Board did
not find it to be “indefensible,” but simply misconduct consisting of
neglect of duty and failing to follow security procedures. The three
SPOs here engaged in no such misconduct.

SECURITY WALLS, LLC 599
without fire protection. Indeed, the Respondent did not
even mention any “imminent danger” to its operations at
the time the SPOs announced their intention not to work
overtime, or in Franco’s termination letter, or in the
warnings to Jacobs and Ortega. Indeed, the Respondent
even acknowledged in those warnings that there was no
emergency.
We need not decide here under what circumstances, if
any, employees’ concerted refusal to work voluntary
overtime could fairly be characterized as indefensible
and therefore unprotected. The facts of this case fail to
show that Ortega, Jacobs, and Franco refused voluntary
overtime in the face of a foreseeable imminent danger.
We therefore find, contrary to the judge, that their con-
duct was not “indefensible.”
Based on the foregoing, we find that the three employ-
ees were engaged in protected concerted activity in fur-
therance of their protest of the Respondent’s overtime
offer to a part-time SPO when they refused to work over-
time and to answer telephone calls from the Respondent
about overtime. This conduct was the sole factor moti-
vating the Respondent’s issuance of disciplinary warn-
ings to Ortega and Jacobs. Accordingly, no further anal-
ysis is required in order to find that the warnings for en-
gaging in protected concerted activity violated Section
8(a)(1) of the Act.9
C.
The legality of Franco’s discharge requires brief addi-
tional analysis. The judge found that his February 23
phone call telling Ruiz to “lay off the overtime” was not
concerted activity, and further, that Franco’s “purpose
was clearly to intimidate her and to discourage her from
accepting part-time work with Respondent.” We disa-
gree with the judge’s characterization of this call. In-
stead, we find that it was part and parcel of the three em-
ployees’ concerted overtime assignment protest, and
there is no objective basis for finding that the nature of
Franco’s statements to Ruiz or the manner in which he
made those statements would warrant removal of the
Act’s protection.
Moreover, even assuming arguendo that Franco’s
phone call was unprotected, we would still find his dis-
charge unlawful.10 Under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
9 See, e.g., Chromalloy Gas Turbine Corp., 331 NLRB 858, 864
(2000), enfd. 262 F.3d 184 (2d Cir. 2001).
10 Member Hayes finds no need to reach the issue of whether the
Franco phone call was statutorily protected conduct inasmuch as he
agrees with his colleagues that, even if unprotected, the Respondent
failed to meet its rebuttal burden of proving that it would have dis-
charged Franco in the absence of his protected refusal to work volun-
tary overtime.
455 U.S. 989 (1982), the General Counsel is required to
prove by a preponderance of the evidence that animus
toward the employee’s protected activity was a substan-
tial or motivating factor in the adverse employment ac-
tion. For the reasons stated above, the General Counsel
has met this initial burden by proving that the Respond-
ent disciplined the three SPOs, including Franco, for en-
gaging in the protected concerted refusal to work volun-
tary overtime and to answer telephone calls about over-
time in support of their protest of the offer of overtime at
regular pay rates to a part-time SPO. Consequently, un-
der Wright Line the burden of persuasion shifts to the
Respondent to prove that it would have taken the same
action even in the absence of this protected activity. It
has failed to meet this burden. In this respect, De Los
Santos’ hearing testimony effectively admits that the
focus of the decision to discharge Franco was on his
leadership role in what the Respondent viewed as a “con-
spiracy” but what must properly be viewed here as a pro-
tected concerted overtime protest. At the very least, the
Respondent has failed to show that in the absence of this
putative “conspiracy” it would have discharged Franco
for his phone call to Ruiz. We therefore conclude that
the Respondent violated Section 8(a)(1) of the Act by
discharging Franco because he engaged in protected con-
certed activity.
AMENDED CONCLUSIONS OF LAW
Insert the following after the judge’s Conclusion of
Law 2.
“3. By issuing warnings to employees Jeff Ortega and
Royal Jacobs and by terminating employee Orlando
Franco, the Respondent violated Section 8(a)(1) of the
Act.”
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(1) by
issuing warnings to employees Royal Jacobs and Jeff
Ortega and by discharging Orlando Franco, we shall or-
der that the Respondent remove from its files any refer-
ence to the unlawful actions, and to inform the employ-
ees that it has done so and that it will not use those ac-
tions against them in any way. We shall also order that
the Respondent offer Orlando Franco reinstatement and
make him whole for any loss of earnings and other bene-
fits, from the date of his discharge to the date of a proper
offer of reinstatement. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
zons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).11
ORDER
The National Labor Relations Board orders that the
Respondent, Security Walls, LLC, Carlsbad, New Mexi-
co, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or warning employees for engaging in
protected concerted activities.
(b) Maintaining an overly broad confidentiality rule
prohibiting employees from disclosing their wage rates,
benefits, promotions, demotions, disciplinary actions,
bonuses, and other terms and conditions of employment.
(c) Maintaining an overly broad confidentiality rule
prohibiting employees from discussing among them-
selves their harassment complaints.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Orlando Franco full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Orlando Franco whole for any loss of earn-
ings and other benefits resulting from his discharge, in
the manner set forth in the amended remedy section of
the decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharge of
Orlando Franco and the unlawful warnings of Jeff Ortega
and Royal Jacobs, and within 3 days thereafter notify the
employees in writing that this has been done and that the
discharge and warnings will not be used against them in
any way.
(d) Rescind the language of the confidentiality rule in
the Respondent’s Restrictive Covenants Policy prohibit-
ing employees from disclosing their salary/wage rates,
benefits, promotions, demotions, disciplinary actions,
bonuses, and other terms and conditions of employment,
11 We shall also modify the judge’s recommended Order to provide
for the electronic distribution of the notice in accord with J. Picini
Flooring, 356 NLRB 1 (2010). For the reasons stated in his dissenting
opinion in J. Picini Flooring, Member Hayes would not require elec-
tronic distribution of the notice.
and notify employees in writing that this has been done
and that the rule is no longer in force.
(e) Rescind the language of the confidentiality rule,
which is set forth in the employee handbook, prohibiting
employees from discussing among themselves their har-
assment complaints, and notify employees in writing that
this has been done and that the rule is no longer in force.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Carlsbad, New Mexico facility, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since October 24, 2008.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

SECURITY WALLS, LLC 601
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge, issue warnings to, or other-
wise discriminate against any of you for engaging in pro-
tected concerted activity.
WE WILL NOT maintain a rule prohibiting employees
from disclosing their salary/wage rates, benefits, promo-
tions, demotions, disciplinary actions, bonuses, and other
terms and conditions of employment.
WE WILL NOT maintain a rule prohibiting employees
from discussing their harassment complaints.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Orlando Franco full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Orlando Franco whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Orlando Franco, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings issued to Jeff Ortega and Royal Jacobs, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that the warnings will not be
used against them in any way.
WE WILL rescind the language of the confidentiality
rule, which is set forth in our Restrictive Covenants Poli-
cy, prohibiting employees from disclosing their sala-
ry/wage rates, benefits, promotions, demotions, discipli-
nary actions, bonuses, and other terms and conditions of
employment.
WE WILL rescind the language of the confidentiality
rule, which is set forth in the employee handbook, pro-
hibiting employees from discussing their harassment
complaints.

SECURITY WALLS, LLC

Liza Walker-McBride, Esq., for the General Counsel.
George Cherpelis, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Carlsbad, New Mexico, on July 28 and
29, 2009. The charge was filed by Orlando Franco (Franco) on
April 24, 2009,1 and an amended complaint issued on July 10,
2009.
The amended complaint alleges that during a period from on
or about April 2008 through or about February 2009, certain
employees of Security Walls, LLC (Respondent) concertedly
complained to the Respondent and engaged in protected con-
certed activity. The amended complaint further alleges that
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) by issuing written reprimands to employ-
ees Jeff Ortega (Ortega) and Royal Jacobs (Jacobs) and by
discharging Orlando Franco (Franco) because its employees
engaged in protected concerted activities. At the onset of the
hearing, counsel for the General Counsel filed a Motion to
Amend the Amended Complaint. The General Counsel’s mo-
tion alleges that since October 24, 2008, Respondent has main-
tained an overly-broad confidentiality rule in its employee
handbook. Pursuant to Section 102.17 of the Board’s Rules
and Regulations, the motion was granted.2 Respondent amend-
ed its answer to deny the additional allegation.
1 All dates are in 2009, unless otherwise indicated.
2 Counsel for the General Counsel submitted that the allegedly un-
lawful language was not known to the General Counsel until Respond-
ent produced documentation in response to the General Counsel’s sub-
poena. There is no factual dispute that the allegedly unlawful language
is contained in Respondent’s employee handbook and its Restrictive
Covenants Policy. The only issue is whether the language constitutes
an overly-broad confidentiality rule in violation of the Act. Inasmuch
as Respondent was given the opportunity to not only present testimoni-
al evidence, but to also submit argument in a posthearing brief, the
motion was granted over the objection of Respondent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company, with principal of-
fices in Knoxville, Tennessee, and an office and place of busi-
ness in Carlsbad, New Mexico, has been engaged in the busi-
ness of providing contract security at the Waste Isolation Pilot
Program in Carlsbad, New Mexico. During the 12-month peri-
od ending April 24, 2009, Respondent performed services val-
ued in excess of $50,000 in States other than the State of New
Mexico. Respondent admits, and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Approximately 32 to 34 miles southeast of Carlsbad, New
Mexico, the U.S. Department of Energy (DOE) operates the
Waste Isolation Pilot Plant (WIPP); a facility that is responsible
for the safe disposal of nuclear waste. The site is located in the
Chihuahuan Desert and is unique because it is the depository of
all of the nuclear industry waste in the United States. The DOE
contracts with Washington Tru Solutions LLC (WTS) to man-
age the WIPP facility. The 30-acre facility covers approxi-
mately 16-square miles. The facility is surrounded by an 8- to
10-foot high fence; topped with strands of barbed wire.
1. Respondent’s responsibilities at the WIPP site
Respondent is a Tennessee limited liability company with an
office and place of business in Carlsbad, New Mexico, where it
has contracted with WTS to provide security at the WIPP site
since April 1, 2008. In providing security for the entire 30
acres of the facility, Respondent’s security police officers
(SPOs) focus primarily on access control for the facility and
protection of the facility and its occupants at all times. As a
part of this contractual obligation, Respondent is responsible
for vehicle controls similar to law enforcement in any small
city. Respondent is additionally responsible for pedestrian
patrols, access control, and the monitoring of badges for em-
ployees. Because the facility is in an isolated area, the facility
must be self-sufficient in maintaining its own fire department,
ambulance service, and medical staff. Respondent’s contract
mandates that its employees provide fire brigade support for the
respective emergency response teams in the facility.
3 In conjunction with her posthearing brief, counsel for the General
Counsel filed a motion to correct the record; citing five instances in
which the transcript contained errors. Respondent filed no opposition
to the General Counsel’s motion. I have reviewed the record and find
merit to the General Counsel’s motion. Accordingly, the motion is
granted and the record is corrected consistent with the General Coun-
sel’s motion of September 16, 2009.
2. The duties and responsibilities of the SPOs
Respondent’s protective force is composed of five crews;
four of which are rotating crews. The fifth crew functions as a
relief crew and only works day-shift hours. During the time
period in issue, Respondent employed five captains who were
salaried and who supervised the respective crews. There were
also four sergeants who were paid hourly and who could fill in
for a captain in the captain’s absence. Under the terms of the
security contract, a minimum of three SPOs were required to be
on duty at all times on each shift. Each shift is usually 12 hours
in length and no employee is allowed to work more than 16
hours in any shift.
Respondent employs approximately 20 SPOs at the site.
Their uniforms are similar to those of military officers. While
on duty, the SPOs wear tricolor desert camouflage uniforms
and armored vests. In addition to carrying radios, handcuffs,
and flashlights, the officers also carry a respirators and gas
masks in the event of an attack or accidental release of the nu-
clear waste. Those SPOs who have qualified for a Q-clearance
also carry a sidearm. Under the provisions of the Atomic Ener-
gy Act, the SPOs have the authority to arrest violators for
committing felonies on the site and for misdemeanors that are
witnessed by the officer. Visitors to the facility are under es-
cort at all times and are required to view a safety video before
they are given authorization to enter the facility. Visitors are
not allowed to tour the facility unless the visit has been pre-
arranged through the Department of State or the Department of
Energy.
Richard De Los Santos (De Los Santos) has been Respond-
ent’s project manager at the WIPP facility since March 20,
2008. As project manager, De Los Santos is held accountable
for managing the activities and duties of the protective force for
the WIPP site. Under the terms of WTS’ contract with Re-
spondent, WTS has an oversite supervisor who supervises De
Los Santos’ actions and recommendations. WTS’ representa-
tive, in turn, reports to the DOE’s local field office security
specialist who oversees the security activities for the site. Prior
to April 2008, the security services for WIPP were contractual-
ly provided by Santa Fe Protective Services (Santa Fe).
Mark Friend is a staff procurement specialist and contract
administrator for the contract between WTS and Respondent.
Friend testified that under the terms of WTS’ contract with the
DOE, the Government can penalize WTS if the Respondent
fails to meet any portion of their contract requirements. Friend
explained that such penalty could be triggered by Respondent’s
failing to provide the adequate number of SPOs or by failing to
meet the fire brigade requirements. Friend went on to explain
that under the terms of the contract, Respondent is responsible
for providing the site with a protective force 24 hours a day for
365 days of the year.
3. Respondent’s obligations to provide fire
brigade coverage
Under Respondent’s contract with WTS, Respondent is re-
quired to have fire brigade—qualified employees available to
cover each shift and to provide coverage 24/7. Specifically,
Respondent must provide two SPOs per shift that are fire quali-
fied. In order for an officer to qualify for fire brigade coverage,

SECURITY WALLS, LLC 603
the officer must have annual fire school training. As of Febru-
ary 2009, only 50 percent of Respondent’s SPOs were fire bri-
gade certified. If Respondent is unable to provide trained SPOs
for fire brigade and emergency services, Respondent’s ability to
protect the facility is compromised and Respondent is required
to inform WTS that Respondent is unable to meet the contrac-
tual requirements. If Respondent is unable to provide the cov-
erage, WTS must contact the Eddy County Fire Department
and the Lee County Fire Department to request assistance in
coverage. The Eddy County Fire Department is located 32
miles from the WIPP site and the Lee County Fire Department
is located approximately 40 miles from the facility. If WTS
cannot arrange for alternate coverage, the facility is closed
down for waste handling operations.
4. SPO pay rates
During the time that Santa Fe maintained the contract for se-
curity services, the (SPOs) were given a $2-per-hour increase in
pay when they received a Q-clearance. A Q-clearance allows
the SPO to handle classified information belonging to the DOE,
as well as to carry a sidearm. The length of time required for
an officer to satisfy the requirements for a Q-clearance can take
as much as 6 months to a year depending upon the level of
investigation required. When Respondent assumed the contract
for the security services at the WIPP, Respondent discontinued
the policy of paying the additional $2 an hour for the Q-
clearance. Respondent did, however, give all of its hourly em-
ployees a $2-an-hour raise when Respondent assumed the con-
tract in 2008.
B. Respondent’s Alleged Violations Involving Franco,
Ortega, and Jacobs
The complaint specifically alleges that during the period
from in or about April 2008 through in or about February 2009,
Franco, Ortega, and Jacobs, and other employees concertedly
complained to the Respondent and engaged in protected con-
certed activity by complaining about, and discussing among
themselves, the rate of pay received by SPOs and other matters
relating to wages, hours, and working conditions. The com-
plaint further alleges that on or about February 24, Franco,
Ortega, and Jacobs engaged in a protected, concerted protest
regarding the Respondent’s distribution of overtime hours
among full-time and part-time employees of Respondent.
1. Discussions and meetings about equal pay
Franco was employed by Respondent as a SPO from April
2008 until February 24, 2009. At the time of his discharge in
February 2009, Franco reported to Captain Robert Ybarra
(Ybarra). Prior to working for Respondent, Franco had also
worked at the WIPP facility for Santa Fe. When Respondent
took over the security contract at the WIPP facility, Franco had
not as yet received his Q-clearance. Without the Q-clearance,
Franco did not carry a sidearm and his pay was $2-an-hour less
than armed officers. Franco would have received a $2-an-hour
raise upon his receipt of the Q-clearance under the prior pay
rate schedule utilized by Santa Fe. In June 2008, Franco re-
ceived his Q-clearance. Although Respondent gave all of its
hourly employees a $2-an-hour raise when Respondent as-
sumed the contract, Respondent did not adopt Santa Fe’s prac-
tice of increasing the officers’ pay upon receipt of the Q-
clearance. SPOs Jeff Ortega and Naaman Martinez also re-
ceived their Q-clearances on or about the same time that Franco
received his Q-clearance. Under Respondent’s policy, none of
these three officers received a pay increase for their receipt of
the Q-clearance. Franco, Ortega, and Martinez discussed meet-
ing with Respondent’s owner, Juanita Walls (Walls), to request
equal pay for all of the armed officers. After requesting their
meeting through the chain of command, a meeting was held on
September 25, 2008. Walls and De Los Santos attended the
meeting with Franco and Martinez. Franco testified that during
the meeting, he asked Walls to “bump up” the pay for the offic-
ers who had obtained their Q-clearance since Respondent had
assumed the contract in order that all armed officers would
receive the same pay. Walls explained that while the $2-an-
hour raise for obtaining the Q-clearance had been Santa Fe’s
policy, it was not hers. She declined to do so.
Franco testified that in January 2009, Captain Robert Ybarra
(Ybarra) mentioned a new law involving equal pay for equal
work. Franco and Jeff Ortega researched the law online and
concluded that Respondent must pay all of the armed officers
the same pay rate. Ortega and Franco requested a meeting with
De Los Santos to discuss their conclusion. When De Los Santos
met with Franco and Ortega in January, he explained that he
had already discussed the matter with Walls. De Los Santos
relayed Walls explanation that because Respondent utilized a
merit determination system for compensation, Respondent was
exempt from the “Equal Work for Equal Pay Act.” Franco
testified that even though the meeting ended on good terms, he
continued to believe that the Equal Pay for Equal Work Act
applied to him. Although he independently contacted the De-
partment of Labor, he found nothing more to support his theo-
ry. Franco also testified that while he mentioned unionization to
some other officers, no action was ever taken in this regard.
Jeff Ortega did not attend the September 25, 2008 meeting.
He did, however, recall meeting with Franco and De Los San-
tos in January 2009 to discuss the issue of additional pay for
receiving the Q-clearance. In contrast to Franco’s testimony,
Ortega recalled that De Los Santos told them that he would
discuss the matter with Walls and get back with them. Ortega
did not remember if De Los Santos ever got back to them with
a response. Ortega had no independent recollection of Franco’s
specifically talking with the other employees about getting the
$2 raise. Ortega recalled that everyone was “pretty upset”
about the change in pay policy and that everyone discussed the
issue.
2. Respondent’s procedure for awarding overtime
When Respondent took over the security contract in April
2008, Respondent continued the same practice that had been
used by Santa Fe in soliciting employees to work overtime.
Respondent continued to utilize a record identified as an aug-
mentation list. Under the procedure, the employee who has the
least amount of accumulated overtime hours on the augmenta-
tion list is the first employee to be contacted and offered avail-
able overtime. The augmentation list documents the times and
dates when employees are offered overtime. If an employee is
contacted and declines the available overtime, the employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
then moves to the bottom of the list to be called for overtime.
In other words, if an employee declines the opportunity to work
the overtime, the result is the same as if the employee had actu-
ally accepted and worked the overtime. If Respondent cannot
reach an employee and there is no rejection of the offered over-
time, the employee is not charged with the overtime hours and
remains at the same place on the overtime list. If there are not
sufficient hourly employees available to work overtime and to
provide the necessary coverage, captains can cover the shifts if
needed. Captain Ybarra testified, however, that captains are
not qualified for fire brigade and cannot fill in for SPOs if fire
brigade coverage is needed.
3. Respondent’s offer of overtime in February 2009
On February 16, 2009, Sergeant William Smith sent an e-
mail to Captain Ybarra and Captain Ray Lopez notifying them
that an officer was needed for fire brigade coverage for the
night shift for February 24, 25, and 26, 2009. De Los Santos
received a copy of the e-mail and testified that Captain Ybarra
would have notified his crew that officers were required for this
period of time. The notification of overtime availability was
confirmed by Ortega’s testimony. He testified that approxi-
mately a week before February 24, he learned that overtime
was going to be available for this time period. Ortega told Cap-
tain Sammy Mendez that he would work the overtime. Mendez
came back to him, however, and told him that he would not be
needed because part-time employee Julie Ruiz had first choice
and she would work the overtime.
4. Julie Ruiz’ work with Respondent
Julie Ruiz (Ruiz) was employed full time by Respondent as
an SPO from April until September 2008; when she became a
full-time firefighter and emergency services technician with
WTS. After September 2008, Ruiz continued to work part time
for Respondent as an SPO if she were needed. Ruiz estimated,
however, that for the period of time from September 2008 until
the date of her testimony of July 28, 2009, she only worked
four 12-hour shifts for Respondent. Because she was only a
part-time employee for Respondent, Ruiz received regular pay
rather than overtime pay. Had Respondent’s full-time employ-
ees worked those four shifts, they would have received over-
time pay. Ruiz recalled that after leaving full-time employment
with Respondent, several SPOs made comments about the
hours that she was working and the pay that she was receiving.
She testified that such comments included, “You must be mak-
ing a lot of money, now you are working with WTS, plus you
are working part-time over here with Security Walls.” Ruiz
was only receiving “training wages” with WTS and she tried to
explain to the officers that she was not receiving a lot of mon-
ey. Ruiz testified that almost every day she heard similar
comments from the SPOs as she cleared security to report to
work at the facility.
5. Franco’s contact with Ruiz
On February 23, 2009, Ruiz received a telephone call as she
was driving home after completing her shift with WTS. When
she answered her cell phone, she was unfamiliar with the tele-
phone number. Seeing that the area code for the caller was
“234,” she thought that it was someone calling her from work
and she assumed that she might have forgotten something from
work. When she answered, the caller stated: “You know what?
I am just calling you to let you know that you need to lay off
the overtime.” She asked the caller to identify himself. When
Franco4 identified himself, Ruiz asked what he meant by his
comment about overtime. Franco repeated, “[L]ay off the over-
time.” She testified that he told her that he was not mad at her,
however, she needed to layoff the overtime. Ruiz recalled that
she responded:

Franco, you shouldn’t be calling me. I don’t make up the
hours or whatever. You need to talk to De Los Santos or
whoever, but don’t call me and tell me not to work or to work.
Franco, if you are wanting overtime hours, there is overtime
tomorrow night, because I can’t work it. I am already work-
ing on my full-time job, and if you want to work that over-
time, go ahead and work that one because I can’t work it.

Ruiz recalled that Franco again responded that he was just let-
ting her know to layoff the overtime. Ruiz told him that she did
not want to hear anymore and she hung up. She testified that
Franco’s call had been upsetting.5 After hanging up, she ini-
tially thought about returning to the facility to confront Franco
about his call. She decided, however, to try to calm down and
to talk with him when she got to work the next day. She antici-
pated that she would see him the next morning as she began her
shift and he ended his shift. She did not, however, see Franco
during shift turnover the next day.
Franco does not deny that he made the telephone call to Ruiz
on February 23, 2009. He asserts that his purpose in telephon-
ing her was to ask her “not” to take “as much overtime” in or-
der that he and other officers could get the overtime. There is
no dispute that Franco made the call while he was at work and
he did so using a speakerphone. There is also no dispute that
Jeff Ortega was present in the room when he made the call.
Franco contends that he told Ruiz: “Well, hey, you know, I
was just calling to ask you if you know you think you could
kind of lay off the overtime so we could get some?” Franco
recalled that Ruiz replied: “Well it is not my problem that you
guys don’t want to take it.” Franco asserted that Ruiz sounded
“kind of angry” and he had assured her: “We are not mad at
you.” Franco asserts that he told Ruiz that he was asking her as
a “favor” not to take the overtime. He does not dispute that she
told him that she was not working the overtime on February 24,
2009, and he could have it.
Although Ortega was present during Franco’s telephone call
to Ruiz, he did not participate in the conversation. Ortega’s
recollection of the conversation was that Franco asked Ruiz if
she would “ease up” on the overtime because some of the other
officers wanted overtime as well. He also recalled that Ruiz
4 Although Ruiz referred to Franco in her testimony as “Lando,”
there is no dispute that Ruiz was referring to Orlando Franco.
5 In an affidavit given to Respondent’s earlier counsel (as distin-
guished from Respondent’s counsel at hearing) and dated May 18,
2009, Ruiz stated that she could tell that Franco was very upset and she
felt threatened. She added that the telephone call scared and intimidat-
ed her. In her testimony at hearing, Ruiz asserted that in giving the
affidavit, she had not chosen the words “scared” and “intimidated” and
that such words were chosen by the attorney taking the statement.

SECURITY WALLS, LLC 605
told Franco that it was not her fault that Respondent called her
first all the time and they didn’t want to work.
During her lunch hour on February 24, Ruiz contacted De
Los Santos in his office. She told De Los Santos that she was
there to complain about the telephone call that she had re-
ceived. She described her telephone conversation with Franco
in detail with De Los Santos and asked De Los Santos to speak
with Franco. Ruiz told De Los Santos that it should be his call
or the captain’s call as to whether she was going to work the
overtime and not Franco’s. Ruiz recalled that after listening to
her, De Los Santos responded that he had had enough of Fran-
co. Ruiz did not respond and left to go to lunch. A day or two
after their conversation, De Los Santos asked Ruiz to put her
complaint about Franco in writing.
6. Franco, Jacobs, and Ortega’s response concerning
working overtime
Over the course of the evening shift on February 23, 2009,
Jacobs, Franco, and Ortega discussed their dissatisfaction that
Ruiz had been offered overtime before full-time employees
were offered overtime. The three employees decided that they
would not work the overtime if called, and they would not an-
swer their telephone if contacted for overtime. As they were
unloading their weapons and preparing to end their shift the
following morning, Captain Steve Soto asked Ortega, Franco,
and Jacobs if they wanted to work the overtime on the evening
shift of February 24, because Ruiz couldn’t work it. Jacobs
recalled that Soto also mentioned that officers were needed for
fire brigade coverage for the shift in issue. Franco confirmed
that the three employees told Soto that if Respondent was not
going to offer the overtime to them first, Respondent could find
somebody else to do it. Franco, Ortega, and Jacobs all told
Soto that they were not going to work the overtime. Both Ja-
cobs and Franco specifically recalled that they told Soto at the
end of their shift that they were not going to work that night
and Respondent should not even bother to call them. Franco
recalled in particular that he told Soto:
Well, if they want to give away our overtime so they can pay
somebody straight time and do it, then we are not going to work
it. They don’t want to pay us the overtime and offer it to us
first, then, no. We are not doing it.
Franco also acknowledged that he knew that Respondent had
the obligation to provide fire brigade protection on the shift in
question. He further admitted that he understood that their
failure to work overtime would cause a problem for Respond-
ent. His response was that it was up to Respondent to figure
out how they were going to cover the fire brigade requirement.
7. The employees’ rationale for their conduct
In testifying about their reason for not working the overtime,
Ortega explained that they were upset with Respondent that a
part-timer with the Company was getting first choice on over-
time. Jacobs also testified that he had “immensely” disagreed
with Respondent’s having offered the overtime to a part-time
employee before offering it to a full-time employee. Jacobs
also told Soto that the employees felt that as a part-time em-
ployee, Ruiz should not get overtime. Jacobs also admitted in
his testimony that the employees’ decision to not work the
overtime was a conspiracy; designed to send a message that a
part-time employee receiving straight pay should not take away
overtime from full-time employees. Jacobs also acknowledged
that at the time that he decided that he would not work the over-
time needed on February 24, 2009, he was aware that Ruiz had
rescinded her decision to accept the overtime work. Jacobs
testified that the fact that Ruiz had first accepted the overtime
for Respondent and then declined it in order to work overtime
for WTS was a “hard pill to swallow.” He knew that Ruiz
would have only received straight time if she had accepted the
shift for Respondent and yet she was going to receive approxi-
mately $50 an hour for working overtime for WTS. When
asked on cross-examination if his decision not to accept the
overtime on February 24, 2009, was his way of getting even
with Respondent, Jacobs answered in the affirmative. On redi-
rect examination, however, he modified his testimony and as-
serted that it was more of an attempt to send a message rather
than to get even with the Respondent.
8. The employees’ actions after leaving work on the
morning of February 24, 2009
Consistent with what the employees told Sergeant Sato on
February 24, 2009, Franco, Ortega, and Jacobs did not respond
to Respondent’s telephone calls requesting the employees to
work overtime. The augmentation log reflects that Respondent
telephoned Franco at 8:26 a.m., 2 and 3:15 p.m. Messages
were left for Franco for each call. Telephone calls were also
made to Jacobs at 8:28 a.m., 2, 3:15, and 7 p.m. The log reflects
that messages were left for Jacobs for three of the four calls.
The log further documents that Respondent telephoned Ortega
at 8:29 a.m., 2, 3:15, and 6:55 p.m.; with messages left for three
of the four telephone calls. Neither Franco nor Jacobs returned
the calls. Ortega estimated that although he received approxi-
mately four to five calls from Respondent after he finished his
shift on February 24, 2009, he did not answer any of the calls.
He recalled that at approximately 2 or 3 p.m., he telephoned the
facility and asked to speak with Soto. When he was unable to
speak with Soto, he left a message for Soto to call him. In leav-
ing the message for Soto to call him, he did not confirm wheth-
er he would or would not come in to the facility to work the
overtime. In explaining why he telephoned Soto, Ortega testi-
fied:

Because the phone kept on ringing and it just got annoying
and after the fact that I had told him that morning that don’t
even bother calling because I’m not going to work.
9. Franco’s discharge
When Franco left work at the end of his shift on Tuesday
morning, he was not scheduled to work again until Friday.
Franco asserts that after resting a few hours, he drove to Ro-
swell, New Mexico, without taking his cell phone. He testified
that after returning home at approximately 8 p.m. that same
evening, Captain Ybarra came to his house. Ybarra told Franco
that De Los Santos wanted to fire him and wanted him to report
to the office the following day with all of his equipment and
gear. At Ybarra’s suggestion, Franco telephoned De Los San-
tos and asked if he could meet with him. De Los Santos agreed.
Ybarra accompanied Franco to the meeting with De Los Santos
on February 25. Franco testified that De Los Santos told him
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
that the corporate office wanted to terminate him because of the
complaint involving Ruiz. Franco told De Los Santos that he
did not harass Ruiz and that Ortega had been present during the
conversation. Franco recalled that De Los Santos said that he
would talk with Ortega and then he would check back with the
corporate office to see if there was a change of mind. He added,
however, that Franco should not get his hopes up. When Fran-
co returned the next day, De Los Santos told him that although
he had spoken with the corporate office, there had been no
change in the decision to terminate him. Prior to his termina-
tion, Franco had received no previous disciplinary action.
Franco’s letter of termination cites misconduct as the basis
for Respondent’s action. The letter includes the following:

A complaint has been filed with the Company regarding mis-
conduct on your part. This letter is to inform you that we
have decided to terminate your employment with Security
Walls. Your incessant complaining and continuous agitation
and harassment of your fellow workers has created a negative
and hostile working environment. Security Walls cannot and
will not tolerate this type of behavior. You will return all of
your issued equipment to the Canal Street Office. This cost of
any missing equipment will be deducted from your final
paycheck.

De Los Santos testified that Franco was terminated because
he compromised Respondent’s contract to provide security
services at the WIPP facility. De Los Santos explained that
under the contract, Respondent is obligated to provide fire pro-
tection and security protection for the WIPP site. De Los San-
tos explained that as a result of Franco’s actions, he (De Los
Santos) did not have enough people on duty to provide the fire
protection that he was required to provide. De Los Santos testi-
fied that while the catalyst for the discharge had been Franco’s
telephone call to Ruiz, he made the discharge decision because
Franco compromised Respondent’s mission and sabotaged
Respondent’s ability to meet the contract.
10. Ortega’s warning
In a memo dated February 27, 2009, Respondent notified Or-
tega that he would receive an official warning for misconduct.
The memo included the following language:

On February 24, 2009, several attempts were made to contact
you, in an effort to offer an opportunity to work overtime on
that evening shift. Several messages were left yet you did not
return the call. As members of the security department and
specifically the Protective Force we are on call to respond to
emergencies on a 24 hour seven day per week basis. Fortu-
nately this was not an emergency. However, we were not
able to meet our contractual obligation of providing Fire Bri-
gade support for that shift as a result of your failure to re-
spond. You were aware that we would need overtime support
prior to leaving the site the morning of the day in question, yet
you chose to ignore the calls from the company. We are
aware that we cannot require you to work incidental overtime,
but we do expect the courtesy of a return call to advise us if
you are able to work or not. This conduct is not acceptable
and will not be tolerated. You are issued an Official Warning
for misconduct which will be entered on your personnel rec-
ord. You are also advised that any further misconduct of any
type on your part will be cause for termination.

Approximately a week after receiving the notice of discipline,
Ortega saw De Los Santos and told him that contrary to the
information in the memorandum, he had returned the call to
Soto to let him know that he was not going to come in to work.
In response, De Los Santos told Ortega that he would remove
the warning.
11. Jacobs’ warning
In a memorandum dated February 27, 2009, Jacobs was in-
formed that he was given an official warning because of mis-
conduct on February 24, 2009. The memorandum contained
identical language to the language contained in the disciplinary
memorandum give to Ortega and dated February 27, 2009.
Jacobs recalled that when he was called in to De Los Santos’
office to receive the memorandum, De Los Santos told him that
Respondent had not been able to provide fire brigade support
for the February 24, 2009 evening shift. De Los Santos also
referred to Jacobs’ conduct as a “conspiracy.” Jacobs testified
that he did not lie to De Los Santos and admitted that it had
been a conspiracy because the three officers had agreed that
they were not going to work. Jacobs recalled that he told De
Los Santos that he didn’t feel that it was appropriate for Ruiz to
double-dip and for a part-time employee to receive straight time
and deny overtime to full-time officers.
12. Respondent’s change in overtime procedure
De Los Santos testified that he disciplined Ortega and Jacobs
because he felt that they engaged in a conspiracy with Franco to
compromise Respondent’s contract and to sabotage Respond-
ent’s mission. De Los Santos explained, however, that after
issuing the discipline, Jacobs talked with him about the applica-
tion of the augmentation list. After speaking with Jacobs, De
Los Santos concluded that it was unfair to charge employees
with overtime when they declined overtime from home. By
memo dated February 26, 2009, the procedure for the augmen-
tation list was modified to allow employees to decline Re-
spondent’s offer of overtime from their home without being
charged for the overtime. Prior to the hearing in this matter,
Respondent rescinded the warning to Jacobs. As discussed
above, Respondent had already rescinded the warning to Ortega
when Respondent learned that Ortega returned the call to Ser-
geant Sato on the evening of February 24, 2009.
C. Conclusions Concerning the Discipline Given
to Franco, Ortega, and Jacobs
1. The employees’ conduct in issue
On the basis of the entire record, it is apparent that the em-
ployees’ conduct with respect to the overtime offer on February
24 is the triggering factor in their discipline. Franco’s disci-
pline was also prompted in part by his telephone call to Ruiz
and his attempt to affect her overtime availability. The record
contains testimony that approximately 5 months prior to their
discipline, Franco and SPO Naaman Martinez met with Walls
and De Los Santos concerning Respondent’s failure to follow
the predecessor’s practice of paying an increase for the receipt
of the Q-clearance. In January 2009, Franco and Ortega met
SECURITY WALLS, LLC 607
with De Los Santos to discuss the issue of equal pay for all
armed SPOs. Thus, there is no dispute that both Franco and
Ortega voiced concerns to management about Respondent’s
pay rate for the SPOs. I do not, however, find these discussions
and complaints significant to the discipline that was issued to
these three employees. Although Franco, Ortega, and Jacobs
may all have participated in discussions and voiced complaints
about Respondent’s failure to pay the additional $2 for the Q-
clearance, the overall evidence does not support a finding that
this conduct was the basis for the alleged unlawful discipline.
Although there is no question that Franco was disciplined more
severely than Ortega and Jacobs, the record does not support a
finding that Respondent did so because Franco complained
about working conditions to any greater extent than the other
employees. Ortega, in fact, testified that he had no independent
recollection of Franco’s discussions with employees about the
$2 raise. Ortega recalled that all of the employees were “upset”
with the discontinuance of paying the raise and that all of the
employees talked about this issue. Additionally, while Franco
and Ortega were involved in discussions with De Los Santos
and Walls about the issue of equal pay for equal work, there is
nothing in the record to show that Respondent discouraged the
meetings or the employees’ attempts to raise such issues. Addi-
tionally, SPO Martinez participated in the September meeting
with Franco, De Los Santos, and Walls without any apparent
adverse consequences. Thus, while the record reflects that
employees engaged in discussions among themselves and com-
plained to management about the Respondent’s failure to pay
the $2 differential for the Q-clearance, the overall evidence
does not support a finding that the discipline in issue was moti-
vated by anything other than the employees’ conduct on Febru-
ary 23 and 24, 2009.
2. The parties’ positions
Both the General Counsel and the Respondent agree that
Section 7 of the Act protects employees who engage in con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection. There is no dispute that em-
ployees who protest their terms and conditions of employment
are generally protected under the Act. The General Counsel
submits that Respondent’s discipline to Franco, Ortega, and
Jacobs violates the Act because their conduct was protected by
the Act. Respondent maintains, however, that the conduct of
these three employees was outside the protection of the Act.
Respondent further asserts that even if the employees engaged
in any protected activity, the General Counsel failed to show
that Respondent took any action against the employees because
of any alleged protected activity.
3. Legal analysis
a. Existing case authority
In its pivotal decision in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), the Board provided a framework for analyzing
those cases turning on a question of the employer’s motivation
in taking adverse action against employees. Under Wright
Line, the General Counsel must persuade that the employee’s
protected activity was a substantial or motivating factor in the
challenged employer decision. If the General Counsel meets
this prima facie requirement, the burden then shifts to the em-
ployer to prove its affirmative defense that it would have taken
the same action even if the employee(s) had not engaged in
protected concerted activity. Manno Electric, 321 NLRB 278,
280 fn. 12 (1996).
In their posthearing briefs, both parties address the facts of
this case in relation to the Wright Line analysis. While it does
not appear that either party is arguing that the facts of this case
should be analyzed solely on the basis of Wright Line, the par-
ties have nevertheless addressed the application of the Wright
Line analysis as an alternative analysis. As discussed above,
the record is clear that Respondent terminated Franco and is-
sued warnings to Ortega and Franco because of their conduct
on February 23 and 24, 2009. De Los Santos acknowledges
that he imposed the discipline because of what he perceived to
be a conspiracy to compromise Respondent’s contract and to
sabotage Respondent’s mission. Counsel for the General
Counsel, however, maintains that what the Respondent per-
ceived to be a conspiracy was, in fact, protected concerted ac-
tivity. Thus, while the parties dispute whether the employees’
conduct was protected, there is no real issue with respect to the
conduct for which the employees were disciplined. According-
ly, inasmuch as Wright Line is appropriately used in cases al-
leging violations where the respondent’s motivation for taking
the allegedly unlawful action is disputed, the analysis is not
applicable in this instance. Saia Motor Freight Line, 333
NLRB 784 (2001); Felix Industries, 331 NLRB 144, 146
(2000), enfd. 151 F.3d 1050 (D.C. Cir. 2000).
It is well established that an employer may not discriminate
against employees who protest their terms and conditions of
employment. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962). Such conduct by an employer violates the Act, irre-
spective of the motive. Falls River Savings Bank, 247 NLRB
631 fn. 3 (1980). In its decision in Washington Aluminum, the
Court also pointed out that Section 7 does not protect all con-
certed activities. The normal categories of unprotected conduct
include activities that are unlawful, violent, or in breach of
contract. In its analysis, the Court also excluded the protection
of the Act for concerted activities that were characterized as
“indefensible” because they were found to show a disloyalty to
the workers’ employer. Ibid at 17.
In arguing that these employees engaged in unprotected con-
duct, Respondent cites the Court’s earlier decision in NLRB v.
Electrical Workers Local 1229, 346 U.S. 464, 472 (1953), in
which the Court noted that Section 7 does not immunize an
employee from discharge for acts of disloyalty or misconduct
merely because those acts were associated with protected activ-
ity. Respondent argues that these employees engaged in a
“concerted refusal to work fully knowing that their conduct
would compromise the ability of Respondent to provide the
required security service to the WIPP site.” Respondent asserts
that in doing so, these employees failed to take reasonable pre-
cautions to protect both Respondent and the WIPP site from
“foreseeable imminent danger” and thus their conduct was
“indefensible” and not entitled to the protection of Section 7 of
the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
In the alternative, Respondent also argues that even if the
employees engaged in protected activity, the General Counsel
has not met its burden under the analytical framework of
Wright Line. Citing the Board’s decisions in Jordan Marsch
Stores Corp., 317 NLRB 460 (1995), and GHR Energy Corp.,
294 NLRB 1011, 1012–1013 (1989), affd. 924 F.2d 1055 (5th
Cir. 1991), Respondent asserts that an employer “must only
show that it reasonably believed” that the employee engaged in
conduct warranting the adverse employment action to establish
its affirmative defense. In both cases cited by Respondent, the
Board affirmed the judge in finding that while the General
Counsel had established a prima facie case of discriminatory
discipline, the employer had “reasonably believed” that the
employees in issue had engaged in serious misconduct. In
GHR Energy Corp., supra, the employer reasonably believed
that the suspended employees had engaged in serious conduct
endangering other employees and the plant itself. In Jordan
Marsch Stores Corp, supra, the employer reasonably believed
that the employee in issue committed a fraud that would have
been grounds for discipline under the employer’s policies.
Although Respondent asserts that it is relieved of liability
because it “reasonably believed” that the discriminatees were
engaging in misconduct that warranted discipline, the General
Counsel argues that the Supreme Court’s decision in NLRB v.
Burnup & Sims6 provides the appropriate analytical analysis.
In Burnup & Sims, the Supreme Court affirmed the Board’s
rule that an employer violates Section 8(a)(1) of the Act by
discharging or disciplining an employee based on its good-
faith, but mistaken belief, that the employee engaged in mis-
conduct in the course of protected activity. As the Board reit-
erated in White Electrical Construction, Inc, 345 NLRB 1095
(2005), Burnup & Sims applies when an employer disciplines
an employee for allegedly engaging in misconduct in the course
of protected activity. In that instance, a good-faith belief that
the employees engaged in misconduct is not a defense if the
General Counsel proves that the employees did not, in fact,
engage in the misconduct. In White Electrical, supra, the Board
went on to point out however, that the Burnup & Sims rationale
does not apply when employees are not engaged in protected
activity. Thus, an employer does not violate the Act by disci-
plining an employee based on a mistaken belief that they en-
gaged in misconduct if their actions did not arise out of any
protected activity. In other words, under the Burnup & Sims
analysis, once the respondent has established that it had a good-
faith belief that the employee engaged in misconduct, the bur-
den shifts back to the General Counsel to prove by a prepon-
derance of the evidence that that the employee did not, in fact,
engage in the misconduct. See Marshall Engineered Products
Co., 351 NLRB 767, 768 (2007); Pepsi-Cola Co., 330 NLRB
474, 475 (2000).
b. Application of the legal analysis
Although there is no real dispute as to the basis for Franco’s
discharge and the warnings issued to Jacobs and Ortega, the
critical question is whether Franco, Jacobs, and Ortega engaged
in protected concerted activity when they conspired to become
6 379 U.S. 21 (1964).
unavailable for needed overtime and when Franco telephoned
Ruiz to discourage her from working overtime.
In deciding Yuker Construction Co., 335 NLRB 1072, 1073
(2001), the Board dealt with a situation in which the employer
terminated two over-the-road drivers for statements made dur-
ing a Nextel phone conversation while they were on the job. In
the course of the conversation, the drivers talked about the em-
ployer’s upcoming work available to them, their opinion of the
rate of pay that the employer would offer, whether they would
work at that rate, and the existence of other jobs available. The
employer overheard their conversation on the Nextel phone and
mistakenly concluded that they were actively seeking other
employment while on the employer’s payroll. The Board af-
firmed the judge in finding that the employees’ discussion of
their plans in searching for alternative work during the winter
months does not constitute concerted activity within the mean-
ing of the Act. Citing the Board’s decision in Meyers Indus-
tries (Meyers II), 281 NLRB 882, 887 (1986), the judge specif-
ically noted that there was no evidence that their talk was “en-
gaged in with the object of initiating or inducing or preparing
for group action or that it had some relation to group action in
the interests of the employees.” There is no real dispute that
Franco, Ortega, and Jacobs purposely withdrew their availabil-
ity for overtime because they did not like the fact that Respond-
ent offered overtime to a part-time employee rather than mak-
ing it available for full-time employees. Although the availa-
bility of overtime work would certainly be of an interest to all
employees, there was no evidence that they did so for the pur-
pose of “initiating or preparing for group action” as envisioned
by Meyers II or as discussed in Yuker Construction. Based
upon their own testimony and the undisputed facts, it appears
that they took the action they did to teach Respondent a lesson
for making the overtime available to Ruiz before offering it to
them or simply to retaliate against Respondent for having done
so. Additionally, I also note that Franco’s telephone call to
Ruiz could not be characterized as initiating or preparing for
group action. Although Franco and Ortega attempted to char-
acterize the telephone call as a friendly request to Ruiz, the
purpose was clearly to intimidate her and to discourage her
from accepting part-time work with Respondent.
Respondent argues that Franco specifically testified that he
never raised any concerns relating to the overtime policy or the
augmentation list with De Los Santos prior to February 24,
2009. While I note that an employee’s failure to make any
specific demand or to notify the employer of the reasons for a
concerted action does not render the conduct unprotected,7
Franco’s failure to do so is a factor in concluding that these
employees’ conduct was more akin to retaliation rather than
true protected concerted activity.
In his brief, counsel for Respondent cites a number of cases
in which the various courts have found partial strikes and in-
termittent work stoppages to be unprotected. Overall, I don’t
find the circumstances of this case to be analogous to a partial
strike or intermittent work stoppage. Respondent does not
allege that these three employees failed to report for scheduled
work or allege that these employees left work during a sched-
7 Eaton Warehousing Co., 297 NLRB 958 fn. 3 (1990).

SECURITY WALLS, LLC 609
uled shift. Clearly, the conduct in issue is their deliberate deci-
sion to ignore Respondent’s need for overtime coverage on
February 24, with the knowledge of the potential consequences
affecting Respondent and the government facility.
Respondent also cites the Board’s decision in International
Protective Services,8 for the proposition that concerted activity
is indefensible where employees fail to take “reasonable pre-
cautions” to protect the employer’s operations from foreseeable
imminent danger. The circumstances of International Protec-
tive Services involved the employees of a security service that
had contracted with the Government Services Administration to
provide security in Alaska’s Federal buildings. The Board
concluded that these employees’ strike at a time of heightened
security concerns was not protected by the Act because the
strike exposed the Federal buildings and their occupants to
foreseeable danger.
In a very recent decision, the Board found that employees’
lost the protection of the Act in somewhat similar circumstanc-
es. In AKAL Security, Inc., 354 NLRB 122, (2009), the re-
spondent employer contracted with the United States Marshals
Service (USMS) to provide security services at Federal court-
houses. Without supervisory permission, two court security
officers held a 30-minute meeting with other employees during
working time to confront another court security officer about
his performance problems which they believed to potentially
jeopardize the safety of court security officers. The employer
concluded that the two officers not only harassed the employee
who had been confronted, but the officers also neglected their
duties during the meeting. While the respondent employer
recommended that the employees be suspended, the USMS
wanted the officers removed from working under its contract.
In applying Burnup & Sims, supra, the judge found the purpose
of the meeting was protected and found a violation of Section
8(a)(1) of the Act. The Board, however, found merit to the
employer’s argument that the employees’ conduct lost the pro-
tection of the Act. The Board noted that the respondent em-
ployer determined that the employees created a security risk by
convening the meeting during operational hours at a location in
the courthouse where they could not fully and effectively moni-
tor the courthouse. The Board found that the employer had a
good-faith belief that the employees engaged in such conduct
and the General Counsel failed to prove that the misconduct did
not occur.
Respondent presented both De Los Santos and WTU’s con-
tract administrator, Mark Friend, to testify about Respondent’s
requirement to have trained SPOs on fire brigade duty on the
evening of February 24, 2009. Friend testified without contra-
diction that if Respondent had been unable to provide fire bri-
gade services for that evening shift, WTU would have had to
depend upon backup services from county services that were
located 32 to 40 miles away from the facility. Franco admitted
that he was aware that Respondent had the obligation to pro-
vide fire brigade protection on the shift in question and he knew
that the unavailability of SPOs for overtime was going to cause
a problem for Respondent. Respondent argues that the discrim-
inatees decided to engage in a concerted refusal to work know-
8 339 NLRB 701, 702 (2003).
ing that their conduct would compromise the ability of Re-
spondent to provide the required security services to the WIPP
site. Respondent argues that in doing so, the discriminatees
failed to take reasonable precautions to protect both Respond-
ent and the WIPP site from “foreseeable imminent danger.”
Respondent’s argument has merit.
Jacobs confirmed that not only did Soto tell them that Re-
spondent needed overtime coverage, but Soto specifically told
them that fire brigade coverage was needed. When Jacobs was
given his discipline, he admitted to De Los Santos that their
conduct on February 24, 2009, had been a conspiracy. He fully
acknowledged that the three employees conspired and agreed
that they were not going to work.
It is undisputed that these three employees did not want Re-
spondent to offer overtime to Ruiz or any other part-time em-
ployee. They believed that the overtime should have been of-
fered to them before offering it to part-time employees. After
Franco and Ortega’s call to Ruiz, Franco, Ortega, and Jacobs
then agreed upon a plan to become unavailable for the coverage
needed for February 24, 2009. Admittedly, they knew that in
doing so, Respondent would be placed in a difficult position
with WTS. Sergeant Ybarra credibly testified that it was not
just a matter of these employees not returning calls, but the fact
that they knew that they were the only SPOs who were availa-
ble for the shift. Ybarra further testified that in his 22 years of
experience in working for both Santa Fe and for Respondent, he
had never known of a situation in which SPOs told a captain to
not bother calling them because they were not coming in to
work. Contract Administrator Mark Friend also testified that
the overtime incident in February 2009 was the first time that
he had been aware that Respondent had not been able to pro-
vide the requisite fire brigade services under the contract, forc-
ing WTS to secure the services elsewhere.
Based upon the above, I do not find that Respondent disci-
plined these employees for conduct that was protected by the
Act. Accordingly, by attempting to affect how overtime would
be offered to employees, the actions of these employees were
nothing more than their attempt to unilaterally determine their
terms and conditions of employment, conduct that is not pro-
tected by the Act. Chep USA & Anthony McGlothian, 345
NLRB 808, 817 (2005); House of Raeford Farms, Inc., 325
NLRB 463 (1998); Bird Engineering, 270 NLRB 1415 (1984).
Therefore, I do not find that Respondent violated Section
8(a)(1) of the Act by terminating Franco and by issuing disci-
plinary notices to Ortega and Jacobs.
D. Respondent’s Confidentiality Rules
At the outset of the hearing in this matter, counsel for the
General Counsel moved to amend the complaint to allege that
since October 24, 2008, Respondent has maintained an overly-
broad confidentiality rule in violation of the Act. As a basis for
this allegation, the General Counsel relies upon specific word-
ing in Respondent’s employee handbook and in its Restrictive
Covenants Policy.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
Page 8 of the Respondent’s employee handbook provides:
Confidentiality

In cases involving a report of harassment or discrimination, all
reasonable efforts will be made to protect the privacy of the
individuals involved. In many cases, however, Security
Walls’ duty to investigate and remedy harassment makes ab-
solute confidentiality impossible. Security Walls will try to
limit the sharing of confidential information with employees
on a “need to know” basis. Employees who assist in an inves-
tigation are required to maintain the confidentiality of all in-
formation learned or provided. Violation of confidentiality
will result in disciplinary action.

Page 11 of the Respondent’s employee handbook provides:

Confidentiality

All records and files of the Company are property of the
Company and considered confidential. No employee is au-
thorized to copy or disclose any file or record. Confidential
information includes all letters or any other information con-
cerning transactions with customer, customer lists, payroll or
personnel records of past or present employees, financial rec-
ords of the Company, all records pertaining to purchases from
vendors or suppliers, correspondence and agreements with
manufacturers or distributors and documents concerning op-
erating procedures of the Company. All telephone calls, let-
ters, or other requests for information about current or former
employee should be immediately directed to the proper mem-
bers of Security Walls’ management.

In the motion, the General Counsel also points to page 2 of the
Restrictive Covenant that contains a directive of what an em-
ployee or terminated employee is prohibited to use or disclose.
The two areas of prohibited disclosure upon which the General
Counsel relies are identified as:

(1) Insurance and benefits cost formulas and payment pre-
miums
(2) Personal and/or sensitive information regarding any Se-
curity Walls, LLC employee with particular emphasis on sala-
ry/hourly wage rate, benefits, promotions demotions, discipli-
nary actions, bonuses, or other actions which are clearly the
authority of the Human Resource Department.
1. The General Counsel’s argument
Counsel for the General Counsel argues that the Board and
courts have long recognized the importance of communication
among employees regarding their wages, hours, and other terms
and conditions of employment.9 The General Counsel specifi-
cally points to the Board’s decision in NLS Group, 352 NLRB
744, 745 (2008), where the Board reiterated its standard for
determining whether a work rule violates Section 7 of the Act.
Following its earlier decision in Lutheran Heritage Village-
Livonia, 343 NLRB 646 (2004), the Board in NLS Group reit-
erated that even if a rule does not explicitly restrict Section 7
rights, the rule is nonetheless unlawful if employees would
reasonably construe the language of the rule to prohibit Section
7 activity.
9 Central Hardware Co. v. NLRB, 407 U.S. 539, 542–543 (1972).
2. Conclusions concerning Respondent’s
confidentiality rules
The Board has cautioned, however, that a rule should be giv-
en a “reasonable reading” and that particular phrases in a rule
should not be read in isolation or presumed to have improper
interference with Section 7 rights. Guardsmark, LLC, 344
NLRB 809 (2005); LaFayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). In LaFayette Park,
the confidentiality rule in issue prohibited employees from
divulging hotel-private information to employees or other indi-
viduals or entities that were not authorized to receive that in-
formation. The Board opined that employees would not rea-
sonably read this rule as prohibiting a discussion of wages and
working conditions. The Board concluded that employees
would reasonably understand that this rule was created to pro-
tect the employer’s legitimate interest in the confidentiality of
its private information; such as guest information, trade secrets,
and contracts with suppliers. Thus, the Board concluded that
the rule did not interfere with employee Section 7 rights, even
though it reasonably addressed and protected the employer’s
interest in confidentiality. In a later case10 in which the Board
applied the same rationale as LaFayette Park, the confidentiali-
ty rule in issue simply stated “company business and docu-
ments are confidential. Disclosure of such information is pro-
hibited.” Applying the rationale of LaFayette Park, the Board
concluded that employees would reasonably understand from
the language of the confidentiality provision that it was de-
signed to protect the employer’s legitimate interest in maintain-
ing the confidentiality of its private business information, not to
prohibit discussion of wages or working conditions.
Thus, the central question appears to be whether employees
would read a confidentiality rule as prohibiting protected em-
ployee communications about terms and conditions of em-
ployment or whether employees would recognize “the legiti-
mate business reasons” for which such a rule is promulgated
and would not believe that it reaches Section 7 activity. LaFa-
yette Park, supra at 827. Clearly, the way in which employees
may reasonably construe the language is pivotal.
In a 200411 case, the employees of a casino were cautioned
that they may be required to deal with information of an ex-
tremely confidential nature and that it was essential that such
information not leave the respective employer’s department by
document or verbally other than as required by a job function.
Specifically included in the prohibited information was infor-
mation concerning salary grades, pay increases, as well as dis-
ciplinary information. The confidentiality rule went on to cau-
tion that information should be provided to “employees outside
the department” or to those outside the company only when a
valid “need to know” was shown to exist. The rule also cau-
tioned that personal information concerning individual employ-
ees should not be discussed with members of an employee’s
own group. In finding that the confidentiality rule infringed
upon employees’ Section 7 rights, the Board noted that the
employer’s confidentiality rule left nothing for the employees
to construe because it specifically defined confidential infor-
10 K-Mart, 330 NLRB 263 (1999).
11 Double Eagle Hotel & Casino, 341 NLRB, 112, 115 (2004).

SECURITY WALLS, LLC 611
mation as including information concerning salary, disciplinary
information, etc.; falling clearly within the realm of wages and
working conditions.
Respondent’s Restrictive Covenants Policy provides that it is
in the business of “providing technical counter-surveillance
measures, security police officers, and other security-related
services to governmental, public, and private persons and enti-
ties.” Respondent maintains that because of the nature of its
business, it is charged with maintaining the confidentiality of
information about its clients’ trade secrets. The policy contin-
ues by asserting that employees may become aware of, or ob-
tain information, that relates to its trade secrets or those of Re-
spondent’s client. Although the policy devotes a good deal of
attention to the restrictions that apply after an employee leaves
his or her employment with Respondent, the policy also refer-
ences the restrictions imposed in disclosing confidential infor-
mation during the employee’s employment. As referenced
above, confidential information is specifically defined to in-
clude “personal and/or sensitive information regarding any
employee with particular emphasis on salary/hourly wage rate,
benefits, promotions, demotions, disciplinary actions, bonuses,
or other actions which are clearly the authority of the Human
Resources Department.” There is nothing in the policy that
gives employees any assurances that the broad restrictions iden-
tified in the policy carve out or exclude discussions that would
otherwise be protected by Section 7 of the Act. More specifi-
cally, there is nothing in the policy that clearly explains that the
restrictions apply only to “legitimate business concerns” and
not to their discussion of wages and other terms of employment
that is protected by the Act. Where there is an unqualified pro-
hibition, the rule may reasonably be construed by employees to
restrict discussion of wages and other terms and conditions of
employment with their fellow employees. Cintas Corp., 344
NLRB 943 (2005). In its 2006 decision in Biggs Food, 347
NLRB 425, 426 (2006), the Board adopted the judge’s analysis
and relied upon Cintas Corp. in finding a confidentiality rule as
unlawfully overbroad. The Board concluded that employees
could reasonably understand the rule, which prohibited disclo-
sure of, among other things, salaries to “anyone outside the
company” as prohibiting discussion of salaries with union rep-
resentatives. Member Kirsanow noted that while he appreciated
that the respondent and employers generally have a legitimate
interest in safeguarding their confidential information from
disclosure to competitors, nothing in the Board’s order preclud-
ed the respondent from modifying its confidentiality policy “so
that its interests are protected and the employees’ Section 7
rights are not violated.”12 Member Kirsanow’s suggestion is
equally applicable to Respondent’s Restrictive Covenant Poli-
cy.
The policy provides for the recovery of damages from an
employee in the event of a breach of the covenant. Although
there is no evidence that the Respondent has used the policy as
a basis for discipline or legal recourse against an employee,
there remains, however, a written prohibition and a clear warn-
ing of what will occur if an employee or former employee
12 Citing language from Double Eagle Hotel & Casino v. NLRB, 414
F.3d 1249, 1260 (10th Cir. 2005).
breaches the covenant. Although I have no basis to conclude
that Respondent prepared this document other than to safeguard
the confidential information of its client and to protect itself
from competitors, the language does not contain a qualified
prohibition and employees could easily construe the policy to
prohibit their discussion of wages and other terms and condi-
tions of employment as protected by the Act. Accordingly, I
find the language in issue in the Restrictive Covenants Policy to
be violative of the Act as alleged by the General Counsel.
The General Counsel also references the wording of the con-
fidentiality rule set forth at page 8 of Respondent’s employee
handbook. The wording asserts employees who assist in an
investigation of harassment or discrimination claims are re-
quired to maintain the confidentiality of all information learned
or provided. The rule provides that a violation of confidentiali-
ty will result in disciplinary action. Counsel for the General
Counsel submits that an objective reading of such a rule re-
quires the conclusion that employees are prohibited from dis-
cussing with each other acts of discrimination and other types
of harassment in the workplace once Respondent has begun an
investigation. De Los Santos testified that Respondent main-
tained this rule because of a need to protect both the victim and
the accused in a sexual harassment complaint. He asserted that
the rule did not preclude the victim or the alleged perpetrator
from discussing the matter. The rule, however, specifically
states that employees who assist in an investigation are required
to maintain the confidentiality of all information learned or
provided and a violation of confidentiality will result in disci-
plinary action. There is no caveat, however, giving employees
any assurances that this rule does not preclude their own dis-
cussion among themselves of sexual harassment concerns or
issues. The Board has found that a confidentiality rule prohibit-
ing employees from discussing their sexual harassment com-
plaints among themselves is violative of Section 8(a)(1) of the
Act. Phoenix Transit System, 337 NLRB 510 (2002).
There are instances in which the Board has used a balancing
test in addressing an employer’s asserted justification for a
broad confidentiality policy. In Caesar’s Palace, 336 NLRB
271 (2001), the employer imposed a confidentiality rule during
an investigation of alleged illegal drug activity in the work
place. Because the investigation involved allegations of a man-
agement coverup and possible management retaliation, as well
as threats of violence, the employer’s investigating officials
attempted to impose a confidentiality rule to ensure that wit-
nesses were not in risk of danger, that evidence was not de-
stroyed, and that testimony was not fabricated. In that instance,
the Board found that the employer established a substantial and
legitimate business justification for its rule and under the cir-
cumstances of the case; the justification outweighed the rule’s
infringement on employee rights. Id. at 272. Such is not the
circumstance in this matter. In this instance, employees could
easily construe the wording of Respondent’s confidentiality
rule as prohibiting discussions as guaranteed by their rights
under Section 7 of the Act. There is no evidence of any extenu-
ating circumstances that provide a substantial and legitimate
business justification for the existing rule. Accordingly, I find
the confidentiality language found on page 8 of the employee
handbook to violate Section 8(a)(1) of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
Counsel for the General Counsel also maintains that employ-
ees would reasonably construe the rules maintained at page 11
of the employee handbook as restricting their right to talk with
each other about various terms and conditions of employment.
I disagree. The section entitled “Confidentiality” on page 11 of
the employee handbook deals with Respondent’s records and
files. The rule precludes an employees’ copying or disclosing
certain files or records relating to transactions with customers,
customer lists, payroll or personnel records of past or present
employees, financial records of the Company, all records per-
taining to purchases from vendors or suppliers, correspondence
and agreements with manufacturers or distributors and docu-
ments concerning operating procedures of the Company. While
I note that payroll or personnel records are included in this list
of documents prohibited from disclosure, an objective reading
of this rule would indicate that the rule is directed toward the
confidentiality of Respondent’s business records and not to the
prohibition of employees’ Section 7 rights. It is not apparent
that employees would construe this rule to preclude their ability
to discuss among themselves matters relating to wages and
terms and conditions of employment. According, I do not find
the language on page 11 of the employee handbook violative of
the Act.
CONCLUSIONS OF LAW
1. Security Walls, LLC, Respondent, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By maintaining overly broad confidentiality rules prohibit-
ing employees from discussing wage rates, benefits, promo-
tions, demotions, disciplinary actions, bonuses, or other terms
and conditions of employment, Respondent violated Section
8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]