SECURITY WALLS, LLC,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Security Walls, Inc. and International Union, Security Police and Fire Professionals of America (SPFPA). Case 16–CA–152423

June 15, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On January 21, 2016, Administrative Law Judge Arthur J. Amchan issued the attached decision finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its disciplinary policy when it discharged three security guards and by failing to bargain with the Charging Party Union over those discharges. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The General Counsel and the Charging Party also filed cross-exceptions and supporting briefs.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, to modify the recommended remedy, and to adopt the recommended Order as modified and set forth in full below.¹

1. BACKGROUND

   The Respondent is a security contractor that began providing guard services to the Internal Revenue Service (IRS) facility in Austin, Texas, on March 1, 2014. The Respondent succeeded an employer that was party to a collective-bargaining agreement with International Union, Security Police and Fire Professionals of America (SPFPA or Union) for a unit of guards. The Respondent

   ¹ In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy. In accordance with our decision in King Soopers, 364 NLRB No. 93 (2016), we shall also order the Respondent to compensate discriminatees Jason Schneider, John Klabunde, and Christopher Marinez for their search for work and interim employment expenses as an offset against interim earnings regardless whether those expenses exceed interim earnings. We shall modify the judge’s recommended Order and substitute a new notice to reflect these remedial changes and to conform to the violations found.

   We reject the General Counsel and Charging Party’s argument on cross-exceptions that the Board should amend the judge’s remedy to extend the backpay period for security guards Schneider, Klabunde, and Marinez regardless of whether the Respondent is able to return them to their prior positions or substantially equivalent positions. The parties can present evidence during the compliance stage of this proceeding regarding the Respondent’s ability to reinstate the discharged employees and its corresponding backpay obligation.

   did not adopt that collective-bargaining agreement, but pursuant to its obligation to recognize and bargain with the Union over the guard unit, it commenced collective bargaining negotiations in August 2014.²

   When the Respondent began providing security services at the Austin IRS facility on March 1, 2014, it posted a “Performance Work Statement” (PWS), which was a component of its agreement with the IRS at the facility. The lengthy PWS includes the following “STANDARDS OF CONDUCT”:

   6.4.1 GENERAL The Contractor shall be responsible for maintaining satisfactory standards of employee competency, conduct, appearance, and integrity, and shall be responsible for taking such disciplinary action with respect to his employees as may be necessary.

   6.4.2 The Government may request the Contractor to immediately remove any employee from any or all locations where the contractor has contracts with the IRS should it be determined that the employee has been disqualified for either employment suitability, performance suitability, or security reasons, or who is found to be unfit for performing security duties during his/her tour of duty. The Contractor must comply with these requests in a timely manner. For clarification, a determination of unfitness may be made from, but not be limited to, incidents involving the most immediately identifiable delinquencies or violations of the Standards of Conduct.

   6.4.3 Each Contract employee is expected to adhere to standards of behavior that reflect credit on himself, his employer, and the Federal Government. The CO and COR[³] have the authority to cause the retraining (at the Contractor’s expense), suspension, or removal of any Contract employee from the contract who does not meet and adhere to the Standards of Conduct as required in this contract.

   6.4.4 The Contractor is also responsible for ensuring that their employees conform to acceptable standards of conduct. The following actions, behaviors, or conditions are cause for immediate removal from performing on the contract:

   ² The Respondent and the Union reached tentative agreement in August 2014 on some issues (including grievance and arbitration, discipline, and discharge), but only agreed to implement procedures for same-day sick leave. The parties ultimately executed a collectivebargaining agreement effective September 1, 2015.

   ³ The PWS defines “CO” as “Contracting Officer” and “COR” as “Contracting Officer’s Representative.”

   2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   The PWS then sets forth a long list of employee offenses, including the following:

   Section 6.4.4.21: Neglecting duties by sleeping while on duty, failing to devote full-time and attention to assigned duties…or any other act that constitutes neglect of duties…

   Subsequently, on April 25, 2014, the Respondent unilaterally adopted a “Disciplinary Action/Policy Statement.”⁴ The policy, signed by Scott Carpenter, the Respondent’s project manager for the IRS contract, and Juanita Walls, the Respondent’s chief manager, specifically states that: “This policy statement is the official policy of “Security Walls” and supersedes all other policies concerning this subject.” The Disciplinary Action/Policy Statement sets forth a detailed progressive disciplinary system which lists specific violations and the corresponding disciplinary actions. Several of these violations, such as refusal to assist or cooperate in investigations, result in immediate termination. Other violations, such as violation of security regulations, or violation of written rules, result in verbal counseling. If a violation of written rules results in a breach of security, the policy provides that it “counts as a third or fourth offense based on previous offenses.” Under the progressive disciplinary system, a third offense calls for a 2-day suspension and a fourth offense calls for termination. This policy had been in effect for more than 1 year when the three discharges at issue in this case occurred. None of the discharged guards had prior offenses.

   On April 15, 2015, security guard Jason Schneider reported to the facility’s visitor center to relieve fellow guard and union president, John Klabunde, who was scheduled to take a break. When the two guards momentarily focused their attention on correcting an error in the logbook, a woman walked into the facility undetected. The next day, the Respondent suspended Klabunde and Schneider. A similar breach occurred on April 22, when a woman and child walked into the facility while security guard Christopher Marinez was adjusting his chair to obtain a clear view of the areas he was responsible for guarding. The Respondent suspended Marinez later that day.

   On April 19, Klabunde, in his capacity as union president, emailed Site Supervisor Frederico Salazar, stating that, “As Local Union President, I have some issues I needed [sic] to address regarding my and Officer Schneider’s suspension.” Klabunde then requested information about his discipline, including the following information:

   ⁴ The Respondent’s adoption of this statement is not alleged as a violation of the Act.

   1) Why were myself and Officer Schneider not given anything in writing regarding the policy him and I violated to constitute a suspension?

   2) Why were we not given the exact duration of the suspension?

   3) What exact company policy did we violate?

   4) In addition, I have a clean record with zero writeups, and to my knowledge, Officer Schneider does as well. So why did this result in a suspension?

   5) At first it was stated to Officer Schneider and myself, that our suspension would be 2 days. However, yesterday Watch Commander Zumpano had told me that it may last longer. There are no items in the company policy that have suspension durations lasting longer than 2 days. So why is it we’re being informed that our suspension might last longer than 2 days?

   On April 23, the Union filed a grievance concerning all three suspensions, arguing that the Respondent failed to adhere to its disciplinary policy. The grievance requested reinstatement of the three guards and went on to state, “The Union and the Company must work sincerely and wholeheartedly to the end, that the provisions of Security Walls Disciplinary Action/Policy Statement be applied and interpreted fairly, conscientiously, without discrimination, and to the best interest of efficient security operations of the client.”

   Also on April 23, the Respondent’s project manager Carpenter, and IRS Contracting Officer Representative (COR) John Sears, exchanged a series of emails. At the time of the discipline, Sears was the IRS representative charged with monitoring the Respondent’s performance of its contract.⁵ In the emails, Sears did not demand that the Respondent discharge the three guards. Instead, after reviewing video footage of the officers’ conduct, Sears stated that “officers working that post must be able to multi-task and recognize what’s going on around them” and that he hoped that the Respondent “can address this...