DFW Security Protective Force (14-CA-180205)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

February 6, 2017

TO:

Leonard J. Perez, Regional Director

Region 14

FROM:

Barry J. Kearney, Associate General Counsel

Division of Advice

SUBJECT: DFW Security Protective Force, Cases 14-CA-

176861, -177024, -177071, -178815, -180205, and

-184549

Successorship Chron

530-4825-6700

530-4850-6700

530-6067-4000

530-6067-6033-8800

524-8387-2200

512-5012-0125

The Region submitted these cases for advice as to whether a federal security

contractor: (1) is a “perfectly clear” successor under Spruce Up Corp.1 and whether

this is a good vehicle to urge the Board to overrule Spruce Up; (2) violated Section

8(a)(5) by making unlawful unilateral changes in employee classifications, weapons

qualifications, health and welfare benefits, and lunch and break schedules; failing to

bargain with the Union prior to terminating employees; and unreasonably delaying in

providing information to the Union; (3) violated Section 8(a)(3) by unlawfully

terminating two employees for their Union leadership positions; and (4) violated

Section 8(a)(1) by promulgating and maintaining overly broad work rules threatening

an employee with termination, and denying an employee

Weingarten2 rights.

We conclude that the Employer is a “perfectly clear” successor who had an

obligation to bargain with the Union prior to setting initial terms and conditions and,

accordingly, violated Section 8(a)(5) by unilaterally changing employee classifications,

health and welfare benefits, weapons qualifications (effects bargaining only), and

lunch and break schedules.3 We also conclude that the Employer lawfully terminated

1 209 NLRB 194 (1974), enforced mem., 529 F.2d 516 (4th Cir. 1975).

2 NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

3 Because the Employer is a “perfectly clear” successor under current Board law, the

Region should not use this case as a vehicle to urge the Board to overturn Spruce Up

ts bargaining only), and

lunch and break schedules.3 We also conclude that the Employer lawfully terminated

1 209 NLRB 194 (1974), enforced mem., 529 F.2d 516 (4th Cir. 1975).

2 NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

3 Because the Employer is a “perfectly clear” successor under current Board law, the

Region should not use this case as a vehicle to urge the Board to overturn Spruce Up.

(b) (6), (b) (7

Cases 14-CA-176861, et al.

- 2 -

the two employees and did not unlawfully fail to bargain with the Union prior to

terminating them; unlawfully delayed providing relevant information requested by

the Union; unlawfully promulgated and maintained an overly broad work rule; did

not unlawfully threaten an employee with termination; and did not deny an employee

Weingarten rights.4

FACTS

A. The Employer’s Takeover of the Predecessor’s Operations

DFW Security Protective Force (“the Employer”) provides contracted security

services at the FAA’s Mike Monroney Aeronautical Center (“MMAC”), located in

Oklahoma City, Oklahoma. In late 2015, the Employer was awarded the MMAC

security contract with operations to commence on April 1, 2016.5 Prior to April 1,

security services at MMAC were provided by joint employers Safety and Security

Services, Inc. and Superior Security and Investigations of Shawnee (collectively “the

Predecessor”).

United Guards of America Local 100 (“the Union”) represents the approximately

fifty-four security guards who provide security at MMAC. Bargaining unit guards

were previously represented by United Security Specialists of America (“USSA”),

which was party to a collective-bargaining agreement with the Predecessor. In 2015,

the Union won a Board election to represent the unit guards

ssor”).

United Guards of America Local 100 (“the Union”) represents the approximately

fifty-four security guards who provide security at MMAC. Bargaining unit guards

were previously represented by United Security Specialists of America (“USSA”),

which was party to a collective-bargaining agreement with the Predecessor. In 2015,

the Union won a Board election to represent the unit guards. After the Union was

certified in April 2015, the Union and the Predecessor executed a bridge agreement

whereby they agreed to abide by the collective-bargaining agreement between USSA

and the Predecessor, and extended it indefinitely until a new agreement could be

negotiated. The collective-bargaining agreement included, inter alia, provisions on

rest and meal breaks, compensation (which included employee classifications and

health and welfare benefits), and employer discretion to implement a 401(k) plan.

In early 2016, the Predecessor notified the Union that it was not awarded the

new MMAC security contract, and the Union learned by word of mouth that the

Employer would be the new MMAC security contractor. In early March, the

Employer’s owners visited MMAC and were introduced to

, who

was also an employee (“Employee A”). Employee A informed the Employer officials

4 As to the allegations that the Employer made unlawful unilateral changes to the

method for filling vacancies; unlawfully harassed, surveilled, and intimidated

employees; and maintained a grievance procedure which inhibited employees’ Section

7 rights, we conclude that these allegations should be dismissed, absent withdrawal,

because the Union failed to provide supporting evidence.

5 All dates hereinafter are in 2016, unless otherwise noted.

(b) (6), (b) (7)

ed, surveilled, and intimidated

employees; and maintained a grievance procedure which inhibited employees’ Section

7 rights, we conclude that these allegations should be dismissed, absent withdrawal,

because the Union failed to provide supporting evidence.

5 All dates hereinafter are in 2016, unless otherwise noted.

(b) (6), (b) (7)

(b) (6), (b) (7)(C)

Cases 14-CA-176861, et al.

- 3 -

about the Union and gave them a copy of the predecessor collective-bargaining

agreement, the Union’s constitution and bylaws, and the Union’s bridge agreement

with the Predecessor.

Later in March, the Employer asked Employee A to assist it in distributing

employment packets and have all employees complete the employment application.

Included in the application was an offer letter, dated March 4, to “All Security Officer

Incumbents/Applicants-FAA/MMAC Contract.” The offer letter stated that the

Employer was “pleased to extend to you a contingent offer of employment as a

Contract Security Officer FAA/MMAC,” and that employees’ “work duties, work

location, shift and post assignment and supervisor are . . . subject to change at the

company’s discretion.” The letter also stated that employees would “receive an hourly

wage and a package of health and welfare benefits in accordance with the prevailing

rates as required by the [collective-bargaining agreement]/Service Contract Act . . . .”6

The employment offers were contingent on employees passing a background

investigation, medical testing, and maintenance of certain licenses. Finally, the letter

instructed employees to accept by signing and returning the offer letter no later than

March 13. The vast majority of letters were signed and dated between March 8 and

March 10. No interviews were conducted.

In late March, the Employer again visited the facility to meet with guards and

answer any questions they had

cal testing, and maintenance of certain licenses. Finally, the letter

instructed employees to accept by signing and returning the offer letter no later than

March 13. The vast majority of letters were signed and dated between March 8 and

March 10. No interviews were conducted.

In late March, the Employer again visited the facility to meet with guards and

answer any questions they had. During the visit, the Employer met with Employee A

and

the Union proposed another bridge agreement that

would apply the predecessor contract to the Employer. Although the Employer

refused to sign the bridge agreement, the meeting became a negotiating session with

the Union for a new collective-bargaining agreement. At the meeting, the Employer

informed the Union that, among other things, the dispatcher position was being

reclassified from armed to unarmed and that the Employer had bid the contract with

this change in mind. The Union protested, explaining that the dispatcher position

under the Predecessor was classified as armed and that, based on the wage rates in

the predecessor agreement, the reclassified guards would receive lower pay.7 After

taking a break, the Union and the Employer ended negotiations for the day without

making any progress.

6 The Service Contract Act, 47 U.S.C. § 6701 et seq., requires federal government

contract employers to pay employees, among other criteria, the wage rate and benefits

as provided in a predecessor collective-bargaining agreement for the first year of

contract performance.

7 The predecessor collective-bargaining agreement set out wage rates for “armed” and

“unarmed” employees; “armed” employees received a higher hourly wage rate.

6701 et seq., requires federal government

contract employers to pay employees, among other criteria, the wage rate and benefits

as provided in a predecessor collective-bargaining agreement for the first year of

contract performance.

7 The predecessor collective-bargaining agreement set out wage rates for “armed” and

“unarmed” employees; “armed” employees received a higher hourly wage rate.

(b) (6), (b) (7)(C)

Cases 14-CA-176861, et al.

- 4 -

On April 1, the Employer began operations at MMAC. Of the fifty-four unit

guards, seven were not retained for employment after failing physical examinations.

The remaining forty-seven guards began working for the Employer. After

commencing operations, employees learned of various changes to working conditions

in addition to the reclassification. First, despite the offer letter’s promise that

employees would receive benefits in accordance with the predecessor collective-

bargaining agreement, employees learned in their first paycheck that they were no

longer receiving direct payments of their health and welfare benefits. The

“Compensation” article in the predecessor agreement required that employees be paid

$3.59 per hour for health and welfare for all hours worked and that health and

welfare pay be included in employees’ paychecks, in addition to their hourly wage

earnings. The Employer, rather than provide health and welfare pay directly to

employees, placed the money in an escrow account for employees to use towards

benefits elections. Further, the Employer established its own 401(k) plan, in which

employees could, at their election, opt to contribute their health and welfare funds.

Although the predecessor agreement contained a provision giving the Predecessor the

right to provide a 401(k) plan, the Predecessor had not established one.

The Employer also changed how employees took their lunch and other breaks

lections. Further, the Employer established its own 401(k) plan, in which

employees could, at their election, opt to contribute their health and welfare funds.

Although the predecessor agreement contained a provision giving the Predecessor the

right to provide a 401(k) plan, the Predecessor had not established one.

The Employer also changed how employees took their lunch and other breaks.

The collective-bargaining agreement between the Predecessor and the Union stated

that employees were entitled to paid breaks and a lunch period during a regular shift

and required the Predecessor to take “reasonable steps” to ensure that employees

were able to take their breaks throughout the day. Accordingly, the Predecessor had

scheduled employees’ lunches and breaks according to a set relief break schedule.

After the Employer took over the MMAC contract, it stopped using the set relief break

schedule and, instead, instructed employees to call in and request relief to take a

break or lunch period.

Finally, the Employer changed how employees obtained the necessary weapons

qualifications. The Employer’s contract with the FAA requires the Employer’s guards

to be appropriately licensed and qualified on the pistols they carry and lists a set of

minimum qualifications that each employee must meet. The Predecessor had

required employees to shoot at stationary targets with revolvers to obtain the

necessary annual weapons qualifications, which would not have satisfied FAA’s

contract with the Employer. In June, the Employer required employees to meet their

annual qualifications recertification on a tactical range and shoot at moving targets

with a semi-automatic pistol at a customized firearms training course.

In mid-December, the Union and Employer executed a new collective-bargaining

agreement, effective until March 31, 2019

uld not have satisfied FAA’s

contract with the Employer. In June, the Employer required employees to meet their

annual qualifications recertification on a tactical range and shoot at moving targets

with a semi-automatic pistol at a customized firearms training course.

In mid-December, the Union and Employer executed a new collective-bargaining

agreement, effective until March 31, 2019. The collective-bargaining agreement

addressed some of the bargaining subjects relevant to the instant case but only as to

future application; the parties have not reached a settlement on the alleged unlawful

unilateral changes at issue here.

Cases 14-CA-176861, et al.

- 5 -

B. Employee Discipline and Terminations

The Employer’s security services at MMAC are governed by a Performance Work

Statement (“PWS”), which describes the requirements, including performance

standards, applicable to the Employer under its contract with the FAA. The PWS

details the work to be done and penalties for failure to abide by certain conditions.

Section 3.2, in the “Requirements” section, states that “[n]o post shall ever be left

unattended . . . .” Section 3.6 states that “[i]f the [Employer’s] employees fail to . . .

perform the required duties, deductions [of 1% of the total monthly contract cost]

shall be taken[.]” Specifically, the PWS states in Section 7.20.3, under the heading of

“Critical Performance,” that any employee who “[f]ail[s] to control access [at the

vehicle entry gates to MMAC]” or “[l]eav[es] a duty post without being properly

relieved[,]” “shall be terminated under this contract.”

i.

Terminations Over Facility Access

In early

Employee A stepped away from

post at the

While

was away from

post, a vehicle entered the

facility unimpeded and without being properly inspected or credentialed. Employee A

was unaware that the vehicle had entered during the short time

stepped away

from

post

ut being properly

relieved[,]” “shall be terminated under this contract.”

i.

Terminations Over Facility Access

In early

Employee A stepped away from

post at the

While

was away from

post, a vehicle entered the

facility unimpeded and without being properly inspected or credentialed. Employee A

was unaware that the vehicle had entered during the short time

stepped away

from

post. The Employer and FAA learned about the incident when the vehicle’s

driver, after entering the facility, stopped to ask for directions; the officer who

assisted the driver noticed that the individual did not have a visitor badge and then

radioed to dispatch for a patrol unit to escort the driver back to the facility’s entrance

to be processed. The radio exchange was overheard by the Employer and FAA

personnel. Employee A was placed on suspension, pending investigation, and then

terminated when the Employer’s investigation determined that Employee A left

post without permission and failed to control access to the facility. The Union filed a

grievance over the termination on Employee A’s behalf and submitted an information

request to the Employer. The Employer did not respond to the initial request, the

Union sent a follow-up request, and the Employer eventually provided the

information approximately one month after the initial request.

During the investigation of Employee A’s conduct and while reviewing security

camera footage of the incident, representatives of the Employer and the FAA observed

another employee (“Employee B”) wave through vehicles at

gate without first

inspecting them; the Employer’s representatives and FAA officials observed the

conduct on a closed circuit live video feed. Employee B, who is also

, was then placed on suspension pending investigation of the incident

iewing security

camera footage of the incident, representatives of the Employer and the FAA observed

another employee (“Employee B”) wave through vehicles at

gate without first

inspecting them; the Employer’s representatives and FAA officials observed the

conduct on a closed circuit live video feed. Employee B, who is also

, was then placed on suspension pending investigation of the incident. During

the Region’s investigation,

and other employees who typically work the

stated that they routinely wave through contractors whom the employees know to

frequent the facility and have a valid pass from earlier in the day. Employee B was

terminated after the Employer’s investigation determined that

failed to control

access to the facility.

(b) (6), (b) (

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (7)

(b) (6), (b

(b) (6), (b) (

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C

Cases 14-CA-176861, et al.

- 6 -

In

, two other employees (“Employee C” and “Employee D”) were

suspended, pending investigation, for failing to control access when a visitor was

allowed into the facility without proper identification or processing; Employees C and

D are members of the Union but do not hold leadership positions. Allegedly, the

visitor showed his driver’s license to Employee D, who mistook it for an official FAA

badge. Employee C observed Employee D check the visitor’s identification, assumed

the visitor was properly credentialed following Employee D’s inspection, and allowed

the visitor to enter the facility. The Employer’s investigation determined that

Employee D was at fault and recommended termination; however, Employee D

resigned before the Employer had an opportunity to terminate

Employee C was

not found at fault for the overall incident, receiving only a three-day suspension

visitor was properly credentialed following Employee D’s inspection, and allowed

the visitor to enter the facility. The Employer’s investigation determined that

Employee D was at fault and recommended termination; however, Employee D

resigned before the Employer had an opportunity to terminate

Employee C was

not found at fault for the overall incident, receiving only a three-day suspension.

Following the Employer’s investigation, the Employer’s

informed

Employee C that another employee had filed charges with the NLRB about the

incident and how it may be different from the earlier incidents that resulted in the

discharges of Employees A and B. The

claimed that if the Employer could

not come up with a credible response differentiating Employee C’s access-control

incident and discipline from those of Employees A and B, the Employer would have to

either reinstate Employees A and B or terminate Employee C.

ii.

Discipline for Rules Violations

Shortly after the Employer began operations in April, Employee A, who is also

, was instructed by the Employer’s

not

to conduct union business “while on the clock.” Another of the Employer’s

acknowledged

gave Employee A the same instruction. A few days later, Employee

A made a request to a supervisor on behalf of unit employees and was again told not

to conduct union business while on the clock. Employee A was then issued written

warnings for conducting union business while working. Although the discipline was

soon after rescinded, the prohibition on conducting union business “while on the

clock” remained.

iii. Investigatory Interview

In

the Employer asked to speak with an employee (“Employee E”).

Employee E requested a Union representative to accompany

to the meeting. At

the meeting, the Employer explained that Employee E was not being issued any

disciplinary action, that the meeting was investigatory in nature, and that there was

no need for the Union representative

ck” remained.

iii. Investigatory Interview

In

the Employer asked to speak with an employee (“Employee E”).

Employee E requested a Union representative to accompany

to the meeting. At

the meeting, the Employer explained that Employee E was not being issued any

disciplinary action, that the meeting was investigatory in nature, and that there was

no need for the Union representative. Despite the Employer’s assurances, the Union

representative present insisted that

remain and, when asked, Employee E

reiterated that

wanted the Union representative present. After continued

insistences by the Union representative and protestations by the Employer, the

Employer ended the meeting and no future meeting took place with Employee E.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7)(

(b) (6), (b) (7)

Cases 14-CA-176861, et al.

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ACTION

We conclude that the Employer is a “perfectly clear” successor who had an

obligation to bargain with the Union prior to setting initial terms and conditions and,

accordingly, violated Section 8(a)(5) by unilaterally changing employee classifications,

health and welfare benefits, weapons qualifications (effects bargaining only), and

lunch and break schedules. We also conclude that the Employer lawfully terminated

the two employees and did not unlawfully fail to bargain with the Union prior to

terminating them; unlawfully delayed providing relevant information requested by

the Union; unlawfully promulgated and maintained an overly broad work rule; did

not unlawfully threaten an employee with termination; and did not deny an employee

Weingarten rights.

A

onclude that the Employer lawfully terminated

the two employees and did not unlawfully fail to bargain with the Union prior to

terminating them; unlawfully delayed providing relevant information requested by

the Union; unlawfully promulgated and maintained an overly broad work rule; did

not unlawfully threaten an employee with termination; and did not deny an employee

Weingarten rights.

A. Successorship and Unilateral Changes

Upon acquiring a business, a new employer has an obligation to bargain with the

union that represented its predecessor’s employees if the new employer continues its

predecessor’s business in substantially the same form and if a majority of its

workforce was formerly employed by the predecessor.8 The successor employer’s

obligation to bargain with the union ordinarily attaches after the occurrence of two

events: (1) a demand for bargaining by the union; and (2) the employment by the

successor employer of a “substantial and representative complement” of employees, a

majority of whom were employed by the predecessor.9 Although an employer is not

required to adopt a predecessor’s collective-bargaining agreement and ordinarily is

permitted to unilaterally fix initial terms and conditions of employment, once the

bargaining obligation attaches, an employer may not make unilateral changes to

employees’ terms and conditions without first bargaining to impasse with the union.10

While a Burns successor employer is normally free to set initial terms and

conditions of employment for its newly hired work force, it must “initially consult with

the employees’ bargaining representative before [it] fixes terms” if it is “perfectly clear

8 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41 (1987); NLRB v.

Burns Int’l Sec. Servs., Inc., 406 U.S. 272, 279–81 (1972).

9 Hampton Lumber Mills-Washington, 334 NLRB 195, 195 (2001) (quoting Royal

Midtown Chrysler Plymouth, 296 NLRB 1039, 1040 (1989))

it must “initially consult with

the employees’ bargaining representative before [it] fixes terms” if it is “perfectly clear

8 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41 (1987); NLRB v.

Burns Int’l Sec. Servs., Inc., 406 U.S. 272, 279–81 (1972).

9 Hampton Lumber Mills-Washington, 334 NLRB 195, 195 (2001) (quoting Royal

Midtown Chrysler Plymouth, 296 NLRB 1039, 1040 (1989)).

10 See Monterey Newspapers, 334 NLRB 1019, 1020 (2001) (successor employer not

bound by predecessor agreement but is obligated to recognize and bargain with union

that represented predecessor employees and may lawfully unilaterally fix initial

terms and conditions of employment).

(b) (6), (b) (7)(

Cases 14-CA-176861, et al.

- 8 -

that the new employer plans to retain all of the employees in the unit.”11 The Board

has limited the “perfectly clear” exception to situations where the new employer

actively or tacitly misleads employees or their union into believing that the employees

will be retained by the successor under the same terms and conditions, or at least

fails to “clearly announce” its intent to establish new terms and conditions prior to or

simultaneous with its invitation to accept employment.12 Thus, an employer becomes

a “perfectly clear” successor only if it is silent as to changing or continuing the

existing working conditions at the time it indicates to employees or their union that it

will be hiring the predecessor’s employees,13 or if its announcement of new terms and

conditions is too “generalized” or “speculative.”14

11 NLRB v. Burns Int’l Sec. Servs., Inc., 406 U.S. at 294–95

, an employer becomes

a “perfectly clear” successor only if it is silent as to changing or continuing the

existing working conditions at the time it indicates to employees or their union that it

will be hiring the predecessor’s employees,13 or if its announcement of new terms and

conditions is too “generalized” or “speculative.”14

11 NLRB v. Burns Int’l Sec. Servs., Inc., 406 U.S. at 294–95.

12 Spruce Up, 209 NLRB at 195 (employer that indicated intent to retain

predecessor’s employees while simultaneously announcing new wage rate was not a

“perfectly clear” successor); Canteen Co., 317 NLRB 1052, 1052–54 (1995) (employer

became “perfectly clear” successor when it informed union of its plan to retain

predecessor employees without announcing changes in working conditions), enforced,

103 F.3d 1335 (7th Cir. 1997).

13 See, e.g., Canteen, 317 NLRB at 1052–54; Roman Catholic Diocese of Brooklyn, 222

NLRB 1052, 1055 (1976) (successor forfeited right to set initial terms under “perfectly

clear” exception where new employer made unequivocal statement to union of intent

to hire all predecessor’s lay teachers, but did not mention any changes in terms and

conditions of employment, which only became known later when it submitted an

employment contract), enforcement denied in relevant part sub. nom. Nazareth

Regional High School v. NLRB, 549 F.2d 873 (2d Cir. 1977); Fremont Ford, 289 NLRB

1290, 1296–97 (1988) (successor forfeited right to set initial terms under “perfectly

clear” exception where new employer manifested intent to retain predecessor’s

employees prior to beginning of the hiring process by informing union it had doubts

about retaining only a few employees and did not announce significant changes in

initial terms until it later conducted hiring interviews).

14 See, e.g., Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 982

“perfectly

clear” exception where new employer manifested intent to retain predecessor’s

employees prior to beginning of the hiring process by informing union it had doubts

about retaining only a few employees and did not announce significant changes in

initial terms until it later conducted hiring interviews).

14 See, e.g., Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 982

(2007) (“A general statement that new terms will subsequently be set is not sufficient

to fulfill the [employer’s] Spruce Up obligation to announce new terms prior to or

simultaneous with the takeover”), enforcement denied in relevant part, 570 F.3d 354

(D.C. Cir. 2009); East Belden Corp., 239 NLRB 776, 793 (1978) (finding employer to be

“perfectly clear” successor where it announced “in generalized and speculative terms”

only that unspecified changes would occur in the future), enforced mem., 634 F.2d 635

(9th Cir. 1980).

Cases 14-CA-176861, et al.

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Here, it is undisputed that the Employer hired nearly all of the Predecessor’s

employees through its employment offer included in the March 4 letter to employees;

further, the Employer does not dispute that it continued the Predecessor’s business

and that the Union made a demand for bargaining. The Employer’s offer letter also

stated that employees’ wages and benefits would be in line with the Predecessor’s

collective-bargaining agreement as required by the Service Contract Act

s through its employment offer included in the March 4 letter to employees;

further, the Employer does not dispute that it continued the Predecessor’s business

and that the Union made a demand for bargaining. The Employer’s offer letter also

stated that employees’ wages and benefits would be in line with the Predecessor’s

collective-bargaining agreement as required by the Service Contract Act. Where the

Employer announced that it would not change employees’ wages and benefits but in

fact planned to reduce some employees’ wages (by reclassifying them from armed to

unarmed) and change benefits, the evidence demonstrates that the Employer misled

employees into thinking they would be hired without changes to their terms and

conditions.15 Although the offer letter contained a general statement that employees’

work duties, locations, shifts, and post assignments were subject to change, this was

not sufficiently specific to pass as a clear announcement.16 Accordingly, the Employer

is a “perfectly clear” successor and was required to bargain to agreement or impasse

before fixing initial terms and conditions of employment.17

15 See Creative Vision Resources, LLC, 364 NLRB No. 91, slip op. at 3 (Aug. 26, 2016)

(predecessor employees submitting applications in response to successor employer’s

offer shows their agreement to work for employer under same terms and conditions as

predecessor; by failing to announce new terms, employer obligated to bargain before

altering predecessor terms and conditions); Nexeo Solutions, LLC, 364 NLRB No. 44,

slip op. at 5, 6–7, 9 (Jul. 18, 2016) (employer was perfectly clear successor and failure

to announce new initial terms and conditions at time employment offer made “lulled”

employees into believing conditions would be comparable to predecessor and deprived

employees of opportunity to seek alternate employment)

altering predecessor terms and conditions); Nexeo Solutions, LLC, 364 NLRB No. 44,

slip op. at 5, 6–7, 9 (Jul. 18, 2016) (employer was perfectly clear successor and failure

to announce new initial terms and conditions at time employment offer made “lulled”

employees into believing conditions would be comparable to predecessor and deprived

employees of opportunity to seek alternate employment).

16 See East Belden Corp., 239 NLRB at 793 (successor’s indication of future

unspecified changes to terms and conditions did not privilege the employer’s

subsequent unilateral changes); Windsor Convalescent Center of North Long Beach,

351 NLRB at 982 (general statement that new terms and conditions will subsequently

be set up is not sufficient to fulfill successor employer’s obligation to announce new

terms prior to or simultaneous with takeover).

17 There is conflicting evidence about whether the Employer decided to make certain

changes part of its initial terms and conditions or whether it intended to implement

the changes at a later date. In any event, the Employer is, at a minimum, an

ordinary Burns successor with an obligation to bargain to agreement or impasse over

the changes that it clearly did not set as initial terms: break periods, weapons

classifications (effects only), and the 401(k) plan. See Blitz Maintenance, 297 NLRB

1005, 1009 (1990) (ordinary Burns successor that did not tell prospective employees

its initial terms and conditions obligated to continue predecessor terms and conditions

of employment absent bargaining to agreement or impasse), enforced mem., 919 F.2d

141 (6th Cir. 1990).

only), and the 401(k) plan. See Blitz Maintenance, 297 NLRB

1005, 1009 (1990) (ordinary Burns successor that did not tell prospective employees

its initial terms and conditions obligated to continue predecessor terms and conditions

of employment absent bargaining to agreement or impasse), enforced mem., 919 F.2d

141 (6th Cir. 1990).

Cases 14-CA-176861, et al.

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B. The Unilateral Changes

Because the Employer is a “perfectly clear” successor with an obligation to

bargain with the Union, it was not privileged to make unilateral changes to

employees’ terms and conditions of employment that existed under the predecessor

employer. Therefore, the Employer violated Section 8(a)(5) by: (1) reclassifying

certain employees from armed to unarmed; (2) changing the method to obtain weapon

qualifications (effects only); (3) changing the method of paying employee benefits and

creating a new 401(k) benefit; and (4) establishing new methods for scheduling

employee breaks.

i.

Reclassifying Employees

The Employer unlawfully reclassified dispatchers and monitors from armed to

unarmed employees, which reduced their pay rate. As a “perfectly clear” successor,

the Employer was required to meet and bargain with the Union before setting initial

terms and conditions. Although the Employer did meet and bargain with the Union

over reclassifying dispatchers from armed to unarmed, the parties did not reach

agreement or impasse.18

The Predecessor’s collective-bargaining agreement with the Union provided that

armed employees receive a higher hourly wage rate than unarmed employees; under

the Predecessor, dispatchers and monitors were classified as armed and paid

accordingly. Thus, when the Employer reclassified the positions, the affected

employees saw a significant decrease in pay; indeed the Employer bid the FAA

contract with this reduction in mind

gaining agreement with the Union provided that

armed employees receive a higher hourly wage rate than unarmed employees; under

the Predecessor, dispatchers and monitors were classified as armed and paid

accordingly. Thus, when the Employer reclassified the positions, the affected

employees saw a significant decrease in pay; indeed the Employer bid the FAA

contract with this reduction in mind. In addition to terms spelled out in a predecessor

contract, past practices also become a term and condition of employment that may not

be unilaterally set as an initial term by a “perfectly clear” successor.19 Although the

predecessor agreement did not specify that dispatchers and monitors should be

classified as “armed,” it was the Predecessor’s past practice to classify them as such.

Accordingly, the Employer violated 8(a)(5) by unilaterally reclassifying them.20

18 See Nexeo Solutions, LLC, 364 NLRB No. 44, slip op. at 12 (“perfectly clear”

successors required to bargain with incumbent union to agreement or impasse before

establishing initial terms).

19 See Blitz Maintenance, 297 NLRB at 1008–9 (terms and conditions of employment

are those established by the predecessor’s collective bargaining agreement or by its

past practices).

20 There is some contradictory evidence about the Employer’s decision to reclassify

dispatchers as unarmed. The Employer claims it came to an agreement with

ance, 297 NLRB at 1008–9 (terms and conditions of employment

are those established by the predecessor’s collective bargaining agreement or by its

past practices).

20 There is some contradictory evidence about the Employer’s decision to reclassify

dispatchers as unarmed. The Employer claims it came to an agreement with

Cases 14-CA-176861, et al.

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ii.

Changes in How Employees Meet Annual Weapons Qualifications

Despite the requirement in the Employer’s contract with the FAA that employees

maintain the necessary weapons qualifications, the Employer violated Section 8(a)(5)

by failing to bargain with the Union over the effects of implementing any changes in

how employees meet those requirements. The PWS that governs the Employer’s

performance under its contract with the FAA includes a section spelling out the

various qualification levels that the Employer’s guards must achieve in order to

continue providing services; however, the PWS states only that the weapons

qualification course be at a “Federal Law Enforcement Training Center” and that the

Employer may choose the actual facility for employees to meet the annual

requirement. It is undisputed that, in June, the Employer changed the way its

employees obtained their annual weapons qualification recertification by requiring

employees to qualify at a new shooting range and by shooting at moving targets with

semi-automatic weapons. Because the Employer had discretion in how employees

completed the FAA-mandated qualifications, it was required to give the Union notice

and an opportunity to bargain over the options available to satisfy the necessary

weapons qualifications requirements.21

iii. Health and Welfare Benefits and 401(k) Program

As a “perfectly clear” successor, the Employer unlawfully set initial terms by

ceasing the Predecessor’s practice of paying health and welfare payments directly to

employees

it was required to give the Union notice

and an opportunity to bargain over the options available to satisfy the necessary

weapons qualifications requirements.21

iii. Health and Welfare Benefits and 401(k) Program

As a “perfectly clear” successor, the Employer unlawfully set initial terms by

ceasing the Predecessor’s practice of paying health and welfare payments directly to

employees. Paying health and welfare benefits directly to employees via their

paycheck was an express term of the collective-bargaining agreement between the

Predecessor and Union and, as such, became a part of the status quo. Accordingly,

Employee A,

prior to commencing operations; in this case, the

Employer would have satisfied its duty to bargain with the Union and could lawfully

set the term. However, two Union officers claim that the matter was brought up in

negotiations prior to April 1 but was not resolved. Because the Union is the charging

party and there is a greater amount of record evidence that supports the Union’s

account, we resolve the discrepancy in the Union’s favor.

21 See Trojan Yacht, 319 NLRB 741, 743 (1995) (employer violated Act when it

unilaterally implemented amendment to pension plan to maintain tax exempt status;

even though amendment required by IRS regulations, employer had choice on how to

amend plan and should have provided union with notice and opportunity to bargain

over choices); Long Island Day Care Services, 303 NLRB 112, 116–17 (1991)

(employer unlawfully unilaterally decided how to distribute 4.75% COLA from HHS;

even though employer dependent on government for funding, it had discretion in how

to distribute COLA).

ired by IRS regulations, employer had choice on how to

amend plan and should have provided union with notice and opportunity to bargain

over choices); Long Island Day Care Services, 303 NLRB 112, 116–17 (1991)

(employer unlawfully unilaterally decided how to distribute 4.75% COLA from HHS;

even though employer dependent on government for funding, it had discretion in how

to distribute COLA).

(b) (6), (b) (7)(C)

Cases 14-CA-176861, et al.

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the Employer was not privileged to unilaterally cease paying health and welfare

benefits directly to employees and redirect the funds to an escrow account.

The Employer also violated Section 8(a)(5) by unilaterally creating a 401(k)

benefit. Although the predecessor collective-bargaining agreement contained a

provision stating that the Predecessor may create a 401(k) program for the benefit of

employees, this was not a term or condition of employment that survived the

transition from the Predecessor to the Employer. A Union may waive its right to

bargain over a mandatory subject of bargaining,22 such as a retirement benefit, but

such waivers generally do not survive the expiration of a collective-bargaining

agreement or the transition from a predecessor to a successor employer.23 The

provision in the predecessor agreement did not contain any language that would

extend it to successor employers and, accordingly, the Employer was not privileged to

unilaterally establish a 401(k) program for employees.24

iv. Lunches and Breaks

The Employer unlawfully changed the method for scheduling lunches and other

breaks because it deviated from the Predecessor’s past practice; although the

Employer is arguably following the language of the previous collective-bargaining

22 See Provena St

s and, accordingly, the Employer was not privileged to

unilaterally establish a 401(k) program for employees.24

iv. Lunches and Breaks

The Employer unlawfully changed the method for scheduling lunches and other

breaks because it deviated from the Predecessor’s past practice; although the

Employer is arguably following the language of the previous collective-bargaining

22 See Provena St. Joseph Medical Center, 350 NLRB 808, 811 (2007) (reaffirming

Board’s longstanding clear and unmistakable waiver standard that requires

bargaining parties to unequivocally and specifically express their mutual intention to

permit unilateral employer action on a particular employment term notwithstanding

the statutory duty to bargain that would otherwise apply).

23 See Holiday Inn of Victorville, 284 NLRB 916, 916 (1987) (successor employer

cannot rely on union waiver of statutory right to bargain over mandatory subject

granted by predecessor contract unless parties had intended waiver to survive

contract). See also Blue Circle Cement Co., 319 NLRB 954, 954 (1995) (contractual

reservation of managerial discretion such as waiver does not extend beyond

expiration of contract unless contract specifically states provision intended to outlive

contract), enforced in relevant part on other grounds, 106 F.3d 413 (10th Cir. 1997)

(unpublished).

24 Even assuming the Employer was privileged to set up a 401(k) benefit, the

Employer had discretion over the details of the program and was, at minimum,

required to bargain with the Union over the benefit’s details and implementation. See

Long Island Day Care Services, 303 NLRB at 116–17 (employer unlawfully

unilaterally decided how to distribute 4.75% COLA from HHS because it had

discretion in how to distribute COLA and should have bargained with union over

distribution of funds).

required to bargain with the Union over the benefit’s details and implementation. See

Long Island Day Care Services, 303 NLRB at 116–17 (employer unlawfully

unilaterally decided how to distribute 4.75% COLA from HHS because it had

discretion in how to distribute COLA and should have bargained with union over

distribution of funds).

Cases 14-CA-176861, et al.

- 13 -

agreement, the Predecessor’s actual past practice is the status quo to be followed.25

The terms of the predecessor contract required the Predecessor to take “reasonable

steps” to ensure that employees were able to take their breaks throughout the day,

and the Predecessor established a set break schedule. Thus, the Predecessor’s break

schedule was a term and condition that was part of the status quo, which the

Employer, as a “perfectly clear” successor, was not privileged to unilaterally change.

For the foregoing reasons, the Region should, absent settlement, issue complaint

on the Employer’s unlawful unilateral changes.

C. The Terminations

In determining whether a termination was unlawfully motivated by an

employee’s protected concerted activity, as opposed to a reason unrelated to protected

concerted activity, the Board applies the test set forth in Wright Line.26 Under

Wright Line, the General Counsel bears the initial burden of establishing, by a

preponderance of the evidence, that protected activity was a motivating factor in the

employer’s decision.27 If the General Counsel makes a showing of discriminatory

motivation by proving the existence of protected activity, the employer’s knowledge of

the activity, and animus toward the protected activity, the burden of persuasion shifts

to the employer to show that it would have taken the same action even in the absence

of the employee’s protected activity.28

Here, the General Counsel would likely be unable to establish a prima facie case

that the Employer discharged Employees A and B because of t

activity, the employer’s knowledge of

the activity, and animus toward the protected activity, the burden of persuasion shifts

to the employer to show that it would have taken the same action even in the absence

of the employee’s protected activity.28

Here, the General Counsel would likely be unable to establish a prima facie case

that the Employer discharged Employees A and B because of their union activity.

Although the Employer is aware of Employee A and B’s

,

there is no evidence of discriminatory motivation or animus toward Employees A or B

25 See Rosdev Hospitality, Secaucus, LP, 349 NLRB 202, 203 (2007) (despite following

predecessor’s collective-bargaining agreement, successor unlawfully unilaterally

changed leave accrual method by failing to follow predecessor’s past practice that

differed from terms of collective-bargaining agreement); Blitz Maintenance, 297

NLRB at 1008–9 (terms and conditions of employment are those established by

predecessor’s collective-bargaining agreement or by its past practices); Peerless Food

Products, 236 NLRB 161, 161 (1978) (policies based in past practice are still terms

and conditions that may not be unilaterally changed).

26 251 NLRB 1083, 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.

1981). See also Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 3 (Mar. 31, 2015).

27 Arc Bridges, 362 NLRB No. 56, slip op. at 3.

28 Id.

, 161 (1978) (policies based in past practice are still terms

and conditions that may not be unilaterally changed).

26 251 NLRB 1083, 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.

1981). See also Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 3 (Mar. 31, 2015).

27 Arc Bridges, 362 NLRB No. 56, slip op. at 3.

28 Id.

(b) (6), (b) (7)(C)

Cases 14-CA-176861, et al.

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for

At most, in April, Employer officials had told

Employee A not to conduct Union business while “on the clock.” When

subsequently conducted Union business while working, the Employer issued

a

written warning but eventually rescinded the discipline.29

But even if the General Counsel were able to make out a case of unlawful

discrimination, the Employer would be able to rebut that case by demonstrating that

it would have discharged Employees A and B because of the Employer’s obligations

under the PWS. The PWS states, in Section 7.20.3, under the heading of “Critical

Performance,” that employees “shall be terminated under this contract” (emphasis

added) for any “[f]ailure to control access [at the vehicle gates to MMAC]” or “[l]eaving

a duty post without being properly relieved.” Further, for each infraction, the PWS

requires the FAA to charge the Employer for 1% of the monthly cost of the contract.

Here, Employee A abandoned

post at

without permission, allowing a

vehicle to enter the facility unimpeded, and Employee B waved through vehicles at

without first inspecting them. In addition, FAA personnel essentially

“witnessed” each incident. In Employee A’s case, the FAA heard the radio call for

assistance regarding an individual who had improperly entered the facility after

Employee A stepped away from

post. As for Employee B, the FAA witnessed the

infraction in real time over live closed circuit video surveillance

gh vehicles at

without first inspecting them. In addition, FAA personnel essentially

“witnessed” each incident. In Employee A’s case, the FAA heard the radio call for

assistance regarding an individual who had improperly entered the facility after

Employee A stepped away from

post. As for Employee B, the FAA witnessed the

infraction in real time over live closed circuit video surveillance. Considering FAA’s

knowledge of these infractions, the Employer had no choice but to take swift action to

remedy the misconduct.

We note that, with respect to Employee B’s infraction, evidence of prior lax

enforcement of gate inspection procedures by the Predecessor, and arguably the

Employer as well, does not undermine the Employer’s Wright Line defense. In this

regard, Employee B and several other employees state that it was common practice to

wave through contractors they recognized; these statements do not differentiate

between the Predecessor’s practices and the Employer’s practices during the month

after it commenced operations. One of the Employer’s managers (“Manager A”), who

had been responsible for supervising

for the Predecessor, states that

Employee B, among others, was told to discontinue the practice and that the

Predecessor had also issued a memo reminding all employees of proper gate

procedures. There is no evidence that the Predecessor disciplined any employees for

waving through contractors they recognized. However, there is no question that the

“wave through” practice violates the Employer’s obligations under the PWS, and that

FAA personnel and Employer management jointly witnessed Employee B’s infraction.

And there is no evidence that FAA personnel had been aware of the practice

beforehand

evidence that the Predecessor disciplined any employees for

waving through contractors they recognized. However, there is no question that the

“wave through” practice violates the Employer’s obligations under the PWS, and that

FAA personnel and Employer management jointly witnessed Employee B’s infraction.

And there is no evidence that FAA personnel had been aware of the practice

beforehand. Under these circumstances, the Employer’s decision to enforce the rules

and terminate Employee B, following an investigation, was not due to

Union

29 Although the discipline was rescinded, the Employer’s prohibition on conducting

Union business while “on the clock” remained effective.

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (7)(C

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (7)(C)

(b) (6), (b)

Cases 14-CA-176861, et al.

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activity, and, instead, was the result of the Employer’s obligations and repercussions

under its FAA contract.30

Additionally, there is no evidence that the Employer treated Employees A and B

differently than others who were caught committing similar infractions. Rather, the

evidence shows that the Employer acted consistently. In this regard, we reject the

Union’s argument that there was disparate treatment between the discipline given to

Employees A and B, who

, and the discipline given to

Employee C, who is a member of the Union

. When

the Employer discovered each employee’s alleged failure to control access, the

respective employee was suspended pending investigation. At the conclusion of the

investigations, Employees A and B were terminated for their infractions, whereas

Employee C was returned to work following

suspension because the Employer

determined that

was not responsible for any infractions

of the Union

. When

the Employer discovered each employee’s alleged failure to control access, the

respective employee was suspended pending investigation. At the conclusion of the

investigations, Employees A and B were terminated for their infractions, whereas

Employee C was returned to work following

suspension because the Employer

determined that

was not responsible for any infractions. Indeed, Employee D, who

also

was found responsible for the failure to control

access and was slated for termination, although

resigned before the Employer had

the opportunity to affirmatively terminate

Accordingly, the Region should dismiss, absent withdrawal, the charges alleging

that the Employer unlawfully terminated Employees A and B.31

D. Additional Allegations

i.

Pre-Termination Failure to Bargain Under Alan Ritchey

The charge alleges that the Employer failed to bargain with the Union over the

terminations of Employees A and B pursuant to the Alan Ritchey32 obligation that an

employer provide notice and opportunity to bargain before imposing certain types of

discipline. The Board’s Alan Ritchey decision was, among others, vacated by the

30 See Arnold Ready Mix Corp., 259 NLRB 202, 205 (1981) (employee lawfully

terminated due to legitimate customer complaints about employee’s work that caused

customer trouble, cost it money, and endangered other employees).

31 The Region also sought advice as to whether it should issue a subpoena to the FAA

to compel answers to the Region’s inquiries as to whether it affirmatively directed the

Employer to terminate Employees A and B. Because the PWS requires termination

for the employees’ infractions, and the PWS governs the Employer’s actions and

requirements on its contract with the FAA, we conclude that the PWS effectively

served as an affirmative directive from the FAA to terminate the employees for their

infractions. Accordingly, no further communications with the FAA are required.

32 359 NLRB 396 (2012)

A and B. Because the PWS requires termination

for the employees’ infractions, and the PWS governs the Employer’s actions and

requirements on its contract with the FAA, we conclude that the PWS effectively

served as an affirmative directive from the FAA to terminate the employees for their

infractions. Accordingly, no further communications with the FAA are required.

32 359 NLRB 396 (2012).

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b)

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (7)

Cases 14-CA-176861, et al.

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Supreme Court in NLRB v. Noel Canning33 because it was decided under an

improperly constituted Board. Recently, in Total Security Management Illinois 1,

LLC,34 the Board affirmed the holding and rationale of Alan Ritchey. However, the

Board in Total Security Management applied the rule prospectively.35 Accordingly,

because the conduct at issue in the instant case occurred prior to the Board’s decision

in Total Security Management, this portion of the charge must be dismissed, absent

withdrawal.

ii.

Unlawful Delay in Providing Requested Information

The Employer violated 8(a)(5) by its delay in providing information requested by

the Union following Employee A’s termination. It is well-settled that an employer has

an obligation to provide a union, on request, information that is relevant and

necessary to the union’s role as exclusive bargaining representative of unit

employees.36 Here, Employee B, in

capacity as

requested

information about Employee A’s suspension and termination, in preparation for filing

a grievance; thus, the information requested was relevant and necessary to the

Union’s role as bargaining representative. After the Employer did not respond to the

initial request, the Union sent a follow up request, and the Employer eventually

provided the information approximately one month after the initial request

on about Employee A’s suspension and termination, in preparation for filing

a grievance; thus, the information requested was relevant and necessary to the

Union’s role as bargaining representative. After the Employer did not respond to the

initial request, the Union sent a follow up request, and the Employer eventually

provided the information approximately one month after the initial request. Because

the Employer failed to provide the information in a timely fashion and without any

justification for its delay, the Region should issue complaint, absent settlement.37

iii. Unlawfully Overbroad Rules

The Employer violated 8(a)(1) by orally promulgating an unlawfully overbroad

rule when it instructed and then disciplined Employee A for allegedly doing union

work “on the clock.”38 Although the Employer rescinded the discipline, it took no

33 134 S.Ct. 2550 (2014).

34 364 NLRB No. 106 (Aug. 26, 2016).

35 Id., slip op. at 1–2.

36 See Woodland Clinic, 331 NLRB 735, 736 (2000) (union is entitled to “information

at the time it made its initial request, [and] it was [the employer’s] duty to furnish it

as promptly as possible” (quoting Penneco, Inc., 212 NLRB 677, 678 (1974))).

37 See id. (employer must provide evidence justifying any delay in providing requested

relevant evidence).

38 See Verizon Wireless, 349 NLRB 640, 659 (2007) (employer violated 8(a)(1) through

maintenance of an unlawfully overbroad, orally promulgated rule).

(b) (6), (b) (7

possible” (quoting Penneco, Inc., 212 NLRB 677, 678 (1974))).

37 See id. (employer must provide evidence justifying any delay in providing requested

relevant evidence).

38 See Verizon Wireless, 349 NLRB 640, 659 (2007) (employer violated 8(a)(1) through

maintenance of an unlawfully overbroad, orally promulgated rule).

(b) (6), (b) (7

(b) (6), (b) (7)(C)

Cases 14-CA-176861, et al.

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remedial actions to address the overly broad prohibitions. Because the “on the clock”

rule is vague and not confined to work time, employees would reasonably understand

the rule to prohibit lawful Section 7 activity during non-work time.39 Accordingly, the

Region should issue complaint, absent settlement.

Further, it would not effectuate the purposes and policies of the Act to issue

complaint regarding the numerous handbook rules that the Region determined were

unlawful, because the Employer rescinded the rules and no employees were

disciplined under the rules while they were in effect. We note that the dismissal

should not be based on Passavant principles because the Employer did not admit the

rules were unlawful prior to rescinding them, nor did it publicize its repudiation or

give assurances to employees.40 Nevertheless, because there is no evidence of harm,

it would not effectuate the policies of the Act to issue complaint on this charge.

iv. Alleged Unlawful Statement Threatening Termination

The Employer’s statement to Employee C, that

may be terminated if the

Employer could not credibly come up with a reason to distinguish

discipline from

Employees A and B, was not an unlawful threat to terminate because it would not

reasonably tend to coerce Employee C in the exercise of

Section 7 rights. In

particular, the statement was not made in response to any Section 7 activity.41

Instead, the Employer merely communicated that it needed to be consistent in

handing out discipline to employees for similar infractions

h

discipline from

Employees A and B, was not an unlawful threat to terminate because it would not

reasonably tend to coerce Employee C in the exercise of

Section 7 rights. In

particular, the statement was not made in response to any Section 7 activity.41

Instead, the Employer merely communicated that it needed to be consistent in

handing out discipline to employees for similar infractions. Accordingly, absent

withdrawal, the charge should be dismissed.

v.

Alleged Weingarten Violation

39 See W. D. Manor Mechanical Contractors, 357 NLRB 1526, 1526, 1544 (2011)

(overly broad rule prohibiting solicitation for union activities while “on the clock”);

Brunswick Corp., 282 NLRB 794, 795 (1987) (“any rule that requires employees to

secure permission from their employer as a precondition to engaging in protected

concerted activity on an employee’s free time and in nonwork areas is unlawful”).

40 See Passavant Memorial Area Hospital, 237 NLRB 138, 138-39 (1978) (to relieve

itself of liability for unlawful conduct, employer must timely, unambiguously, and

specifically repudiate its unlawful conduct; employer must also adequately publicize

the repudiation and assure employees that it will not interfere with employees’

exercise of Section 7 rights in the future).

41 See Sacramento Recycling & Transfer Station, 345 NLRB 564, 565 (2005)

(manager’s statement that he would not terminate employees unless someone “pissed

him off” not unlawful threat of discharge because not made in response to employees’

protected concerted activities).

(b) (6), (b

(b) (6), (b) (7

f Section 7 rights in the future).

41 See Sacramento Recycling & Transfer Station, 345 NLRB 564, 565 (2005)

(manager’s statement that he would not terminate employees unless someone “pissed

him off” not unlawful threat of discharge because not made in response to employees’

protected concerted activities).

(b) (6), (b

(b) (6), (b) (7

(b) (6), (b)

Cases 14-CA-176861, et al.

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Although an employee has a right to union representation when the employee

reasonably believes an investigatory meeting with

employer may result in

disciplinary action,42 there is no violation in the present case. Here, although the

Employer refused to permit a Union representative to be present during the planned

investigatory interview, the Employer continually assured Employee E and the Union

representative that the meeting was only investigatory in nature and would not result

in discipline. Moreover, even assuming Employee E reasonably believed the meeting

could result in disciplinary action, the Employer terminated the meeting when

Employee E expressed discomfort with proceeding without a Union representative.43

In any event, Employee E did not cooperate in the Region’s investigation. Based on

the evidence in hand, the Employer did not violate Employee E’s Weingarten rights.

Accordingly, this portion of the charge should be dismissed, absent withdrawal.

/s/

B.J.K.

H: ADV.14-CA-176861.Response.DFWSecurity

doc

cc: Injunction Litigation Branch

42 NLRB v. Weingarten, Inc., 420 U.S. at 257.

43 Id. at 258 (employer not obligated to justify refusal to allow union representative’s

presence, and may lawfully continue investigation of employee without conducting

interview).

(b) (6), (b) (7)(

(b) (6), (b)