# NLRB Division of Advice Memorandum, Case No. 14-CA-180205 (DFW Security Protective Force): DFW Security Protective Force (14-CA-180205)

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_14-CA-180205

## Section

- **Citation:** NLRB Division of Advice Memorandum, Case No. 14-CA-180205 (DFW Security Protective Force)
- **Heading:** DFW Security Protective Force (14-CA-180205)
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** NLRB Division of Advice Memoranda (rolling 10-year window) / DFW Security Protective Force (14-CA-180205)

## Text

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.

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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.

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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.

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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.

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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

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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)(

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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).

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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.

- 10 -

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.

- 11 -

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.

- 12 -
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.

- 14 -
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.

- 15 -
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.

- 16 -
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.

- 17 -
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.

- 18 -

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)

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- [NLRB Division of Advice Memorandum, Case No. 01-CA-300935 (Universal Automation and Mechanical Services Inc.) Universal Automation and Mechanical Services Inc. (01-CA-300935)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_01-CA-300935.md)
- [NLRB Division of Advice Memorandum, Case No. 01-CB-219943 (UNITE HERE Local 26 (Battery Wharf)) UNITE HERE Local 26 (Battery Wharf) (01-CB-219943)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_01-CB-219943.md)
- [NLRB Division of Advice Memorandum, Case No. 01-CB-241548 (IBEW Local 103 (Encore Boston Harbor)) IBEW Local 103 (Encore Boston Harbor) (01-CB-241548)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_01-CB-241548.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-040028 (Rogan Brothers Sanitation, Inc.) Rogan Brothers Sanitation, Inc. (02-CA-040028)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-040028.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-182019 (Epiq Document Review) Epiq Document Review (02-CA-182019)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-182019.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-183801 (The Trump Corp.) The Trump Corp. (02-CA-183801)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-183801.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-199415 (Trade Off, LLC) Trade Off, LLC (02-CA-199415)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-199415.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-204176 (Libra Services) Libra Services (02-CA-204176)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-204176.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-231984 (Nusr-Et Steakhouse) Nusr-Et Steakhouse (02-CA-231984)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-231984.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CA-262630 (Fox Television Stations) Fox Television Stations (02-CA-262630)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CA-262630.md)
- [NLRB Division of Advice Memorandum, Case No. 02-CB-184756 (Electrical Workers Local 3 (Time Warner Cable New York)) Electrical Workers Local 3 (Time Warner Cable New York) (02-CB-184756)](https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_02-CB-184756.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/NLRB_ADVICE_14-CA-180205. Check the current official text before relying on it. Not legal advice.