Paragon Systems, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2016

364 NLRB No. 134 (N.L.R.B. 2016)

364 NLRB No. 134
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Paragon Systems, Inc. and United Government Secu-
rity Officers of America, Local 236. Cases 12–
CA–105275 and 12–CA–105291
October 31, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On May 15, 2014, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief. The General Coun-
sel subsequently filed a Motion to Withdraw Exceptions
and Modify the Administrative Law Judge’s Findings
and Conclusions of Law.
The Board has considered the decision and the record
in light of the exceptions, briefs, and the General Coun-
sel’s motion and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The judge, relying on Alan Ritchey, Inc., 359 NLRB
396 (2012), found that the Respondent violated Section
8(a)(5) and (1) of the Act by disciplining five employees
without first giving the Union an opportunity to bargain
about either the discipline or the effects of the discipline.
At the time of the Decision and Order in Alan Ritchey,
however, the composition of the Board included two
persons whose appointments to the Board had been chal-
lenged as constitutionally infirm. On June 26, 2014, the
United States Supreme Court issued its decision in NLRB
v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the
challenged appointments to the Board were not valid. In
light of the Supreme Court’s decision in Noel Canning,
the Board recently examined de novo the rule first an-
nounced in Alan Ritchey. See Total Security Manage-
ment, Inc., 364 NLRB No. 106 (2016). The Board reaf-
firmed the rule, but found that, in light of circumstances
including the Supreme Court’s retroactive nullification of
Alan Ritchey, applying the rule to cases preceding the
issuance of Total Security would constitute manifest in-
justice. 364 NLRB No. 106, slip op. at 11–12.
The General Counsel subsequently moved to withdraw
his exceptions in this case and requested that the Board
modify the judge’s conclusions of law and proposed or-
der consistent with its holding that the rule announced in
Total Security would only be applied prospectively.1 We

1 See Board’s Rules and Regulations, Sec. 102.49.
grant the General Counsel’s unopposed motion and ac-
cordingly find that the Respondent did not violate Sec-
tion 8(a)(5) and (1) as alleged by disciplining employees
without first giving the Union an opportunity to bargain.2
ORDER
The National Labor Relations Board orders that the
Respondent, Paragon Systems, Inc., Tampa, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requesting that unit employees sign Dispute Reso-
lution Agreements (DRAs), thereby bypassing the Union,
their collective-bargaining representative.
(b) Refusing to bargain collectively with the Union by
failing to accept and discuss grievances.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it in a timely manner with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of the Respondent’s unit
employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the DRAs signed by employees in the bar-
gaining unit.
(b) Notify all current and former employees in the bar-
gaining unit who signed DRAs that the DRAs have been
rescinded.
(c) On request, accept and discuss grievances filed by
the Union.
(d) On request, furnish the Union in a timely manner
with information the Union requests that is relevant and
necessary to its performance of its functions as the col-
lective-bargaining representative of the Respondent’s
unit employees.
(e) Within 14 days after service by the Region, post at
each of its facilities in Florida copies of the attached no-

2 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(5) and (1) of the Act by: (1) request-
ing that unit employees sign Dispute Resolution Agreements, thereby
bypassing the Union, their collective-bargaining representative; (2)
refusing to accept and discuss grievances filed by the Union; and (3)
responding to the Union’s information requests in an untimely manner.
We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and we shall
substitute a new notice to conform to the Order as modified.
Member Miscimarra disagrees with the decision in Total Security for
the reasons discussed in his separate opinion in that case (Total Securi-
ty, slip op. at 17–42 (Member Miscimarra, concurring in part and dis-
senting in part)), but agrees with his colleagues that the Respondent’s
relevant conduct here did not violate the Act under that decision.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 2015.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. October 31, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT request that unit employees sign Dispute
Resolution Agreements (DRAs), thereby bypassing the
Union, their collective-bargaining representative.
WE WILL NOT refuse to bargain collectively with the
Union by failing to accept and discuss grievances.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it in a timely
manner with requested information that is relevant and
necessary to the Union’s performance of its functions as
your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the DRAs signed by employees in the
bargaining unit.
WE WILL notify all current and former employees in
the bargaining unit who signed DRAs that the DRAs
have been rescinded.
WE WILL, on request, accept and discuss grievances
filed by the Union.
WE WILL, on request, furnish the Union in a timely
manner with information it requests that is relevant and
necessary to its performance of its functions as the col-
lective-bargaining representative of our employees in the
bargaining unit.
PARAGON SYSTEMS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/12–CA–105275 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
PARAGON SYSTEMS, INC. 3
Thomas Brudney, Esq., for the General Counsel.
Roman Gumul, Director, Labor Relations, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on March 5, 2014, in Tampa, Florida. The
consolidated complaint, which issued on December 31, 2013,1
and was based upon unfair labor practice charges and amended
charges filed on May 15, July 30 and 31 by United Government
Security Officers of America, Local 236 (the Union), alleges
that Paragon Systems, Inc. (the Respondent), violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) by
engaging in the following conduct: suspending seven employ-
ees between February 25 and May 31 and discharging two em-
ployees on April 9 and 15, without notice to the Union and
without affording the Union an opportunity to bargain with
respect to this discipline or with respect to the effects of this
conduct; since about March 17 and 27, refusing to meet with
the Union with respect to a grievance concerning the suspen-
sion of employees for performance related issues as well as a
grievance related to employee Thomas Cifarelli’s employment;
dealing directly with employees in the unit by requiring them to
sign its Dispute Resolution Agreement as a condition of em-
ployment; and unreasonably delaying in furnishing the Union
with relevant information that it requested on April 9, June 9
and 16 by not furnishing this information to the Union until
about September 17.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent admits, and I find, that it has been engaged
in providing security and guard service to agencies of the Unit-
ed States Government in Florida and surrounding areas, and
that it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE FACTS
A. Dispute Resolution Agreement
On about December 1, 2012, the Respondent was awarded
the contract by the Federal Protective Service (the FPS), to
provide security officers for certain Federal buildings in Flori-
da, which work had previously been performed by ERIS, which

1 Unless indicated otherwise, all dates herein relate to the year 2013.
had a contract with the Union. On about December 1, 2012, the
Respondent recognized the Union as the exclusive collective-
bargaining representative of the unit composed of armed and
unarmed security officers, but refused to assume the terms and
conditions of the ERIS collective-bargaining agreement and,
instead, negotiated a new collective-bargaining agreement with
the Union that was effective from June 1, 2013, to November
30, 2014.
The principal witness herein was Larry Stacy, who is em-
ployed by the Respondent as project manager for the contract
with the FPS covering the unit employees involved herein. He
testified that in about February, employees told him that their
pay stubs stated that they had to sign certain documents, includ-
ing Dispute Resolution Agreements,2 (DRAs). After speaking
to the Respondent’s human resources department, he notified
all supervisors that they were to distribute DRAs to all unit
employees, whether current employees or preemployment em-
ployees, to be signed and returned, and, prior to the distribution
of these forms, he did not inform the Union that these forms
were being distributed to the bargaining unit employees. About
11 employees signed these DRAs between March 19 and June
25. Shortly thereafter, Stacy was told by human resources that
employees in the bargaining unit were not to be asked to sign
these forms and he immediately instructed his supervisors to
stop distributing these forms to the unit employees, but he nev-
er told the employees that they did not have to complete the
forms. The only employees who were subsequently asked to
sign these forms were employees who were not in a bargaining
unit. Sharon Ragsdale, who is employed by the Respondent,
testified that in about February, Sergeant Holmes handed her a
copy of the DRA and the acknowledgement and receipt of it
and said, “Sign this.” She read them and said, “I’m not signing
this,” and Holmes took them back and left. He never told her
that the Respondent was not requiring employees to sign the
forms. Union President Charles Mestas testified that employees
told him that they were being asked to sign the DRAs although
he was not notified prior to this time that the Respondent was
asking the employees to sign these forms, and he was never
notified that the Respondent was rescinding the requirement
that the employees sign this form.
B. Refusal to Bargain about Discipline
The principal portion of this case presents the issue of
whether an employer who has a recognized or certified union
representing certain of its employees has an obligation to bar-
gain with that union regarding the discipline of its union-
represented employees prior to the execution of the initial con-
tract with that union.
The discipline involved herein for the nine employees took
place between February 25 and May 31; alleged and admitted,
is:
Joe Favell suspended on February 25.
Kevin Daley suspended on March 4.
Donald Mendez suspended on March 4.

2 Briefly stated, this form requires that all disputes between the em-
ployee and the Respondent be resolved by an arbitrator, rather than by a
court or jury trial.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joshua Wielder suspended on March 16.
Thomas Cifarelli discharged on April 9.
Jose Robles discharged on April 15.
Duane Douglas suspended on April 29.
Kelvin Strong suspended on April 30.
Anthony Durand-Gonzales suspended on May 31.
Although there were few credibility issues, I found Stacy to
be a totally credible witness who was open, direct, and never
evasive in his testimony and credit his testimony in total. He
testified that he did not notify Mestas, or anyone else from the
Union, of the Respondent’s decision to suspend Mendez,
Strong, Daley, Favell, Durand-Gonzales, Douglas, and Wielder
prior to their suspensions, and likewise did not notify Mestas,
or anyone else from the Union, of the decision to discharge
Cifarelli, Robles, and Carlovitch,3 nor did the Respondent offer
to bargain with the Union regarding these suspensions and dis-
charges. Mestas testified that “multiple times” during the nego-
tiations with the Respondent from late 2012 to July, he told the
Respondent’s representatives that by discharging and suspend-
ed these employees they did not treat the employees properly.
Stacy testified that at no time during these negotiations, nor at
any other time, did the Union bring up the suspensions or the
termination of Cifarelli and Robles or ask to meet to discuss
these disciplines.
Daley and Mendez—March 4
Daley and Mendez failed a “covert penetration test” con-
ducted on March 4 when they, allegedly, failed to identify an
explosive device and failed to act properly in the situation by
allowing an individual into “a secure zone.” Because they
failed to follow the proper procedure during this test, failed to
identify the device involved, allowed a suspect into a secure
zone, and “do not appear to accept the seriousness of the pro-
gram,” Stacy recommended that Mendez be removed from the
facility and be retrained and that Daley be transferred to anoth-
er facility, but for whatever reason, they were each suspended
for 7 days. The Respondent did not notify the Union about
these suspensions either before or after the decisions were
made.
Durand-Gonzales and Weider
Durand-Gonzales’ alleged violation was that “he failed to
follow post orders and had a visitor with him during a lunch
break on May 31, which is not authorized.” A suspension re-
quest form states: “Durand-Gonzales violated several policies
at work on the 31st of May. Didn’t raise the flag, didn’t make
required checks and had visitor at lunch for 24 minutes.” On
June 6, Stacy emailed Nicole Ferritto, the director of employee
relations, requesting a 3-day suspension for him, but adding:
“Please provide guidance, after you review as to whether my
request is too strong/weak.” Ferritto emailed that he should be
suspended indefinitely pending a further investigation because
he had other post order violations in the past. Stacy was uncer-
tain what length the final suspension was, although a summary
prepared for the hearing by the the Respondent states that he

3 Carloviotch’s discharge is relevant only regarding the request for
information allegation to be discussed infra.
received a 3-day suspension on May 31 for “failure to follow
post orders.” At no point during this process did Stacy or the
Respondent inform the Union of Durand-Gonzales’ suspension.
On March 18, Stacy sent an email to Ferritto stating: “Please
find attached an indefinite suspension request on Joshua Wei-
der. On the 15th and 17th of March he pulled his OC spray and
sprayed a defenseless raccoon with no provocation other than
meanness.” Weider was suspended on March 18, although it is
unclear whether the suspension is for 5 days, as stated in a
summary prepared by the Respondent, or was “indefinite,” as
Stacy stated to Ferritto in an email dated March 18.
Douglas, Favell, and Strong
Douglas, Favel, and Strong were suspended for creating an
“open post.” When a guard is the only officer to be present (for
example, opening a post) and he/she is late or absent from the
assignment, that post is unattended or open. The situation is
different, and not as serious when the officer is late replacing
another security officer who can remain on the post until the
replacement arrives. An open post could result in a fine or de-
duction in fees for the Respondent. Stacy relied on the Re-
spondent’s security officer handbook for this discipline. Under
Rules for Personal Conduct, Major Rule Offenses, and states:
“Discharge if warranted after unpaid suspension and manage-
ment investigation.” Numbers 12 and 29 state:
12. Refusal to submit to authority and/or refusal to follow in-
structions from supervisors who have been appointed over
him/her , or from a member of the client’s facility who has the
authority from the client to issue instructions to the security
force; not following Post Orders4 either written or verbal.
29. Violation of agency and contractor security procedures
and regulations or violation of the rules and regulations gov-
erning public buildings as set forth in. . . .
Stacy testified that from December 1, 2012, to January 18, the
Respondent was only issuing counseling to the officers for open
post violations; however, because of the large number of open
post violations in December and January, the Respondent de-
cided to change the punishment from counseling to a 3-day
suspension.
Supervisor Kevin Young completed a suspension request
form for Douglas stating that the rule that was violated was:
“Open Post.” The request form states: “PSO Douglas arrived to
post on time, but without his weapon. He returned to his house
to get his weapon and returned to post at 9:20, 4/29/2013. . . .
Requesting 24 hour suspension.” This suspension was approved
on April 29. Favell was given a 3-day suspension for an open
post violation on February 25 and Strong was also given a 3-
day suspension on April 24 for an open post violation.
Jose Robles
Robles reported 10 minutes late for work on April 3, causing
an open post violation. On April 5, Stacy sent an email to Fer-
ritto entitled “Indefinite Suspension Jose Robles,” stating: “On
the 3rd of April you approved a 5 day suspension for PSO Ro-

4 These are orders, prepared by the Government, that the security of-
ficers receive describing the officers’ daily functions.
PARAGON SYSTEMS, INC. 5
bles for causing a 10 minute open post. Today I was informed
that even though he was 10 minutes late (0810), he still signed
the 139 at 0800. This is the reason for this request.” She re-
sponded: “Approved.” By letter dated April 16, Ferritto wrote
Robles, inter alia:
I am writing to notify you that effective immediately, your
employment with Paragon Systems is terminated. Your em-
ployment is being terminated for falsification of government
documents.
Specifically, it was determined that on 3 April 2013, you were
observed arriving on post after your scheduled arrival, ap-
proximately 10 minutes late; however, you signed in as if you
arrived at your scheduled time of 0800. During the company’s
investigation into these events, you admitted to arriving late
and to signing in on the 139 as having arrived at 0800 hours
(your scheduled in-time). Falsification of time records is a vi-
olation of company policy, specifically Major Rule #9, as
well as Section 2.5 of the Security Guard Information Manu-
al.5
Mestas testified that he never requested to meet with Stacy
regarding the suspensions of Favell, Daley, Mendez, Wieder,
Douglas, Strong, or Durand-Gonzales, or regarding the dis-
charge of Robles.
Thomas Cifarelli
As is true of the allegations discussed above, it is alleged that
the Respondent discharged Cifarelli on April 9 without prior
notice to the Union and without affording the Union an oppor-
tunity to bargain about the discharge. The complaint further
alleges that the Respondent refused to meet with the Union
with respect to a grievance related to the termination of Cifarel-
li’s employment and unreasonably delayed in furnishing the
Union with information that it requested pertaining to the
grievance that it filed on behalf of Cifarelli.
The situation with Cifarelli commenced when his supervisor
noticed that he arrived at his post on March 11 6 minutes late at
7:06 a.m., rather than 7 a.m., the time he was scheduled to
begin work, and he told Cifarelli to write on the form 139 that
he arrived at 7:06 a.m., which he initially did. Subsequently,
somebody wrote over the 7:06 a.m. and altered it by changing
the initial entry to 7 a.m. and the hours worked column was

5 Respondent’s security officer, Handbook, under Rules for Personal
Conduct, “Major Rule Offenses—Discharge, if warranted, after unpaid
suspension and management investigation. Possible probation period
determined at the discretion of the Program Manager,” lists as No. 9:
“Falsification or unlawful concealment, removal, mutilation, or destruc-
tion of any official documents or records…including 139s.” Further,
under Progressive Discipline Policy, Causes for Immediate Suspension,
the handbook states: “Some types of misconduct are so intolerable that
they [sic] be punished by suspension at the first occurrence. These
include . . . falsification of an employment application or other work
documents or records. . . .” The Federal Protective Service security
guard information manual, under “Acceptable Conduct,” states: “You
must report for duty at the assigned time and post. It is your duty to
report on time and to stay on post until you are properly relieved.”
Under “Grounds for Possible Disciplinary Action,” No. 16 states: “Fal-
sifying . . . official documents or records. . . .”
written in for 12 hours, rather than 11 hours, 54 minutes. When
Stacy was shown this form, “. . . I could immediately see that
the entry was written over, so an indefinite suspension request
was initiated on PSO Cifarelli.” Cifarelli was called to Stacy’s
office on March 18 and told that because he falsified the form
139 he was going to be suspended. Cifarelli requested union
representation and Stacy told him that he could call Mestas, and
Stacy left his office so that Cifarelli could speak privately with
Mestas. When Stacy returned to his office, he told Cifarelli that
he was being suspended. After Cifarelli left the office, Stacy
noticed that the document (the form 139) that he had shown to
Cifarelli had been altered again, this time from 7 to 7:06 a.m.
while he was out of the office. Because of this alteration, he
decided that pursuant to the rules referred to supra, in the hand-
book and the manual, he should be terminated. On March 20,
Stacy wrote to Ferritto changing his recommendation from a
suspension to a termination, stating:
Although PSO Cifarelli states that it was only a mistake that
he wrote in 12-hours for the day, he intentionally overwrote
the 0706, which was originally entered, with 0700. This was
an attempt by him to alter the fact that he arrived late for duty.
It is apparent that he did not believe that he would get caught
and that the 139 and 1103 would not be verified for accuracy.
The matter here is not that PSO Cifarelli was six minutes late
for duty, but that he tried to hide it by overwriting the original
entry and writing that he completed 12 hours. PSO Cifarelli
also attempted to cover his tracks on the 18th of March 2013
when he intentionally traced over every entry on the original
139 when he walked into my office, when I stepped out, and
marked up the form; he even tried to change the time back to
0706. These actions are gross violations of company and
Government policy.
By letter dated April 9, Ferritto informed Cifarelli that effective
immediately his employment was being terminated for the fal-
sification of government documents, specifically the form 139,
and was informed that it was a violation of major rule 9 of the
handbook and section 2.5 of the manual.
C. Grievances and Requests for Information; Mendez,
Daley, Cifarelli, and Carlevitch
After Mestas learned that Mendez and Daley had been sus-
pended, he filed a grievance with Stacy dated March 17 object-
ing to the suspensions. On the following day, Stacy responded
stating: “As there is no CBA between the two parties, there is
no grievance process.” On March 28 Mestas filed a grievance
with Stacy regarding Cifarelli’s discharge; on the same day,
Stacy again replied that as there is no contract, there is no
grievance procedure.
By letter to Stacy dated April 9, Mestas requested the follow-
ing information regarding Cifarelli:
Any and all reports, emails or correspondence from
FPS used in the investigation.
The 139 for the time, date, and location in question, to
include any variants sent to FPS.
The tardiness records of all bargaining unit employees
over the past five months.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The names of all employees disciplined for tardiness
within the past five months, dates and descriptions of each
discipline, and the amount of tardiness that led to each dis-
cipline.
Mestas testified that he needed this information to assist him in
filing a grievance regarding Cifarelli’s discharge. By email
dated April 12, Stacy responded as follows:
With respect to request number one, please see PSPO
Cifarelli’s statement attached.
With respect to request number two, you will have to
file a Freedom of Information Act (FOISA) from the FPS
to obtain the requested information.
With respect to request number three, the Form 139 is
a Federal Government document and you will have to file
a FOIA request for the documentation.
With respect to request number four, PSO Cifarelli
was not terminated for tardiness. Rather, he was terminat-
ed for altering a Form 139. Therefore, your request is not
considered as relevant, and therefore denied.
With respect to request number five, please refer to my
response to request number four.
Mestas received all the information that he requested on April 9
on September 17.
Stacy testified that he discussed Cifarelli’s termination with
Mestas after Cifarelli was terminated, but at that meeting Mes-
tas did not ask him to reinstate Cifarelli, and during the negotia-
tions for the initial contract, beginning in December 2012, the
Union never brought up the subject of the suspensions and
terminations.
On April 9, Mestas sent an email to Stacy requesting the fol-
lowing information regarding employee John Carlovitch, who
apparently had been discharged shortly prior to this email:
The personnel file of John Carlevitch.
The entire file of the company’s investigation into this
matter.
All correspondence between FPS and the company in
regards to this matter.
The 1103 and 139 for the day in question, and
The names of all employees who have been charged
with committing the same infraction and the outcome of
those alleged violations.
Stacy responded on the following day that he would have to
discuss the request with Respondent’s director of labor rela-
tions in order to determine the proper procedure to be em-
ployed. On June 16, Mestas repeated his request for this infor-
mation, and on June 17, Stacy responded that he has been told
what he can give to Mestas, and invited Mestas to come to his
office to pick up the information. Mestas testified that when he
went to Stacy’s office he did not receive all the documents that
he had requested, and did not receive them until September 17.
III. ANALYSIS
Stacy credibly testified that he initially notified the supervi-
sors to distribute the DRAs to all employees, including the
bargaining unit employees, but was subsequently notified by
the Respondent’s HR department that the bargaining unit em-
ployees were not to be asked to sign these forms. He then in-
structed the supervisors to stop distributing them to the unit
employees. After that, only nonunit employees were asked to
sign these forms. As the DRAs were a term and condition of
employment for the unit employees, Respondent was obligated
to negotiate with the Union, the employees’ collective-
bargaining representative, about them. Rather than doing that,
the Respondent solicited the employees directly to sign these
forms. In Passavant Memorial Area Hospital, 237 NLRB 138
(1978), the Board stated that under certain circumstances an
employer may relieve itself of liability for unlawful conduct by
repudiating that conduct. However, in order to be effective, the
repudiation must be timely, unambiguous, specific in nature to
the coercive conduct, free from other proscribed illegal con-
duct, and there must be an adequate publication of the repudia-
tion to the employees involved. As the bargaining unit employ-
ees were never told that they were not required to sign the
DRAs, the requirements of Passavant were not satisfied, and
the request that the employees sign these forms violates Section
8(a)(5) and (1) of the Act. Kaiser-Permanente Medical Care,
248 NLRB 147 (1980). The Respondent’s brief defends that
since some of the individuals who signed the DRAs were appli-
cants for employment, rather than employees, there is no viola-
tion herein. Although it is true that some of the individuals who
were asked to sign had not yet begun working for the Respond-
ent, the Board has long found that applicants for employment
are employees within the meaning of the Act. HVAC Mechani-
cal Services, Inc., 333 NLRB 206 (2001); Massey Energy Co.,
354 NLRB 687 (2009).
The principal portion of this case relates to what is an em-
ployer’s obligation to a union representing certain of its em-
ployees after the union has been recognized or certified, by
prior to the parties entering into a collective-bargaining agree-
ment. In the situation herein, the Respondent suspended or
disciplined nine of its unit employees between about February
25 and May 31, after the Union had been recognized, but before
the parties had entered into their initial collective-bargaining
agreement, without prior bargaining with, or notice to, the Un-
ion. The Board was presented with this issue recently in Alan
Ritchey, Inc., 359 NLRB 396 (2012), where it held that discre-
tionary discipline is a mandatory subject of bargaining and
employers may not impose certain kinds of discipline unilater-
ally in those situations. More specifically, the Board stated:
We now conclude that…an employer must provide its em-
ployees’ bargaining representative notice and the opportunity
to bargain in good faith before exercising its discretion to im-
pose certain discipline on individual employees, absent a
binding agreement with the union providing for a process,
such as a grievance-arbitration system, to resolve such dis-
putes. [Id at 397.]
[W]here an employer’s disciplinary system is fixed as to the
broad standards for determining whether a violation has oc-
curred, but discretionary as to whether or what type of disci-
pline will be imposed in particular circumstances, we hold
that an employer must maintain the fixed aspects of the disci-
pline system and bargain with the union over the discretionary
aspects (if any), e.g., whether to impose discipline in individ-
PARAGON SYSTEMS, INC. 7
ual cases and, if so, the type of discipline to impose. The duty
to bargain is triggered before a suspension, demotion, dis-
charge, or analogous sanction is imposed, but after imposition
for lesser sanctions, such as oral or written warnings. [Id. at
401.]
For example, in a workplace where the employer has an es-
tablished practice of disciplining employees for absenteeism,
the decision to impose discipline for such conduct will not
give rise to an obligation to bargain over whether absenteeism
is generally an appropriate grounds for discipline. Instead,
bargaining will be limited to the specific case at hand: e.g.,
whether the employee was actually absent and merited disci-
pline under the established practice. Similarly, if the employer
consistently suspends employees for absenteeism, but the
length of the suspension is discretionary, bargaining will be
limited to that issue. . . . [Id. at 405.]
Mendez and Daley were suspended on March 4, when they
failed a “covert penetration test” by failing to identify an explo-
sive device and allowed an individual to walk unescorted
through a “safe zone.” As an unusual offense such as this could
not have had a fixed penalty attached to it, the prescribed penal-
ty must have involved the exercise of discretion. In addition,
Stacy’s recommendations regarding their punishment was re-
jected, further supporting a finding that there was no “fixed”
punishment for their offense. Therefore, pursuant to Alan
Ritchey, supra, prior notification to the Union is required. As
the Respondent did not notify the Union of the suspension of
Mendez and Daley prior to the suspensions, it violated Section
8(a)(5) and (1) of the Act. The complaint also alleges that the
Respondent refused to meet with the Union with respect to the
grievance that Mestas filed regarding the suspensions of Men-
dez and Daley. Mestas sent the grievance to Stacy on March 17
with a note stating that Stacy should contact him if he had any
questions or concerns about the grievance. Stacy’s email to
Mestas dated March 18, states that the grievance would not be
accepted, as there was no contract and, therefore, no grievance
procedure. In Storall Mfg. Co., 275 NLRB 2230, 221 (1985),
the Board stated:
It is well settled that grievances relating to terms and
conditions of employment, including disciplinary actions
taken against employees, are proper subjects of collective
bargaining . . . an employer is obligated to discuss and
process such grievances with the union in a sincere effort
to reach resolution. The absence of a collective bargaining
agreement incorporating a grievance procedure does not
relieve an employer of this obligation.
By refusing to accept or discuss Mendez and Daley’s grievance
due to the lack of a contract, the Respondent violated Section
8(a)(5) and (1) of the Act.
The alleged infractions by Durand-Gonzales and Weider
were also of such an unusual nature that the suspensions, of
necessity, had to require the use of discretion on the part of the
Respondent. Durand-Gonzales’ violations were that he didn’t
raise the flag, didn’t make required checks, and had a visitor at
lunch. Stacy recommended a 3-day suspension, but asked for
guidance as to whether that request was too strong or too weak.
Ferritto said that he should be suspended indefinitely because
of prior violations. The nature of the violations, together with
the interaction between Stacy and Ferritto, establishes the un-
certainty of the punishment for these infractions, and clearly
shows that discretion was required. As the Union was not noti-
fied of the suspension, it violates Section 8(a)(5) and (1) of the
Act. Weider was suspended because he “sprayed a defenseless
raccoon with no provocation other than meanness.” Clearly,
there could be no fixed penalty for spraying a defenseless rac-
coon. As the Union was not properly notified of this suspen-
sion, it too violates Section 8(a)(5) and (1) of the Act.
On April 30, Supervisor Young completed a suspension re-
quest form for Douglas stating that on April 29 he arrived for
work on time, but without his weapon. He went home and re-
turned to his post at 9:20 a.m. Stacy requested a 24-hour sus-
pension for Douglas, which was approved and Douglas re-
ceived a 24-hour suspension, rather than a 3-day suspension.
The difference may be explained by the fact that he arrived for
work on time, but without his weapon. As he was suspended
without prior notice to the Union, and discretion was clearly
exercised in determining the length of his suspension, I find
that it violated Section 8(a)(5) and (1) of the Act. By email
dated February 25, Scott Milne wrote to Stacy: “Please see
attached requests” which included a suspension request for
Favell. This request was approved and Favell was suspended
for 3 days for an open post violation. By email dated April 24
to Ferritto regarding Strong, Stacy wrote: “Here is a suspension
request for an open post today, Please see attachment.” Ferritto
responded, “Approved,” and Strong was given a 3-day suspen-
sion. Stacy testified that he relied upon the employee handbook
in determining that open post violations warranted a 3-day sus-
pension. He also testified that while open post violators in De-
cember 2012 were given counseling, due to the large number of
subsequent violations, a decision was made to change the pen-
alty to a 3-day suspension and, after that, all open post viola-
tions were disciplined with a 3-day suspension. As the open
post penalty were fixed, rather than discretionary, I find that the
3-day suspensions of Favell and Strong, without prior notice to
the Union, did not violate the Act, but that the Respondent must
bargain with the Union over whether they were late arriving for
work, creating the open post violation.
The remaining disciplinary allegations relate to the termina-
tions of Robles and Cifarelli. Robles was terminated on April
16 for arriving late for work on April 3 and creating an open
post, and for falsifying the form 139 to state that he arrived for
work on time. Cifarelli was also discharged for falsifying form
139, but on two occasions; allegedly, he initially falsified the
time sheet to show that he arrived for work on time on March
11, at 7 a.m., rather than 7:06 a.m., and subsequently, while
alone in Stacy’s office, changed it back again to 7:06 a.m.. Both
the handbook and the manual refer to falsification of official
documents. The handbook states that it is punishable by “dis-
charge, if warranted, after unpaid suspension,” and the manual
states that it “comprises grounds for possible disciplinary ac-
tion, up to and including permanent removal from any FPS
security guard service contract.” It appears to me that discretion
is not needed when a guard is accused of falsifying official
documents, as is alleged here, and that the Respondent did not
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violate the Act by terminating Robles and Cifarelli for these
actions; however, it must bargain with the Union about whether
they were actually guilty of these violations. When Mestas filed
a grievance regarding the discharge of Cifarelli, it was rejected
by Stacy for the same reason that he rejected the grievances of
Mendez and Daley, that there was no contract. For the reason
stated above, the rejection of this grievance also violates Sec-
tion 8(a)(5) and (1) of the Act.
The remaining allegations relate to the delay in Respondent
furnishing the Union with the information that it requested
regarding Cifarelli and Carlevitch. Mestas filed his information
request regarding Cifarelli on April 9. The final two requests
involved tardiness, and Stacy correctly responded that as
Cifarelli was not discharged for tardiness, these items were not
relevant to the Union. However, the other requests were rele-
vant and should easily have been obtainable by the Respondent.
Mestas did not receive all the information that he requested
until September 17. Mestas also requested certain information
from Stacy regarding Carlevitch on April 9. Five specific areas
of information were requested, and were not fully provided
until September 17. The law is clear that an employer is obli-
gated to furnish the union with requested information in a time-
ly manner, and this obligation “cannot be defined in terms of a
per se rule. What is required is a reasonable good faith effort to
respond to the request as promptly as circumstances allow.”
Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993).
In evaluating the promptness of the response, “the Board will
consider the complexity and extent of information sought, its
availability and the difficulty in retrieving the information.”
Samaritan Medical Center, 319 NLRB 392, 398 (1995). Nei-
ther information request was particularly complex. The three
relevant portion of the Cifarelli request could have been com-
piled easily within a day. While the Carlevitch request was
more complex, there was no valid reason why it should have
required the Respondent almost 6months to comply. I therefore
find that by delaying the turnover of this information, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) of the
Act by requesting that employees sign Dispute Resolution
Agreements, thereby bypassing the Union, their collective-
bargaining representative.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by disciplining five employees, between February 25,
2013, and May 31, 2013, without affording the Union an oppor-
tunity to bargain about this conduct or with respect to the ef-
fects of the conduct.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to accept and discuss grievances filed by the
Union.
6. The Respondent violated Section 8(a)(5) and (1) of the
Act by responding to the Union’s information requests in an
untimely manner.
7. The Respondent did not violate the Act by suspending Fa-
vell and Strong for 3 days and for discharging Robles and
Cifarelli, as no discretion was employed in these disciplinary
actions.
THE REMEDY
Having found that the Respondent has failed and refused to
notify and bargain with the Union regarding the discipline of
bargaining unit employees, pursuant to the Board’s Decision in
Alan Richey, supra, I shall recommend that the Respondent
notify and bargain with the Union regarding the discipline of
bargaining unit employees where discretion was involved in
determining the discipline. Where discretion was not employed,
Respondent must bargain with the Union as to whether the
employees were actually guilty of the offense. Respondent will
further be ordered to bargain in good faith with the Union re-
garding grievances that it files, and to respond in a timely man-
ner to the Union’s requests for information. As Mendez, Daley,
Durand-Gonzales, Weider, and Douglas were each suspended
without notification to, or bargaining with, the Union, I rec-
ommend that the Respondent be ordered to make them whole
for the loss that they suffered as a result of the suspensions.
Upon these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Paragon Systems, Inc., Tampa, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Requesting that employees sign Dispute Resolution
Agreements, thereby bypassing the Union, their collective-
bargaining representative.
(b) Disciplining employees without affording the Union an
opportunity to bargain about this conduct or with respect to the
effects of the conduct.
(c) Refusing to accept and discuss grievances filed by the
Union.
(d) Responding to the Union’s information requests in an un-
timely manner.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify its employees that they are not required to sign the
Dispute Resolution Agreement.
(b) Notify and bargain with the Union regarding the disci-
pline of employees where discretion was exercised in the de-
termination of discipline, and bargain with the Union over
whether the employees had actually committed the offense
involved, when discretion was not employed.
(c) Discuss and bargain in good faith with the Union about
grievances that it files.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
PARAGON SYSTEMS, INC. 9
(d) Upon receipt of information requests from the Union that
are necessary for, and relevant to the Union as the collective-
bargaining representative of certain of its employees, provide
the Union with the information in a reasonable and timely
manner.
(e) Make whole Donald Mendez, Kevin Daley, Joshua Wei-
der, Duane Douglas, and Anthony Durand-Gonzales for any
loss that they suffered as a result of their suspensions on about
March 4, March 16, April 29, and May 31.
(f) Within 14 days after service by the Region, post at each
of its facility in Tampa, Florida, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 25,
2013.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 15, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT ask our employees to sign Dispute Resolution
Agreements, thereby bypassing the Union, their collective-
bargaining representative.
WE WILL NOT discipline employees without affording the Un-
ion an opportunity to bargain about this conduct or with respect
to the effects of the conduct.
WE WILL NOT refuse to accept and discuss grievances filed by
the Union and WE WILL NOT fail to respond to the Union’s in-
formation requests in a timely manner.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL notify employees that they are not required to sign
the Dispute Resolution Agreement.
WE WILL notify and bargain with the Union regarding the
discipline of employees where discretion was exercised in the
determination of discipline, and bargain with the Union over
whether the employees had actually committed the offense
involved, when discretion was not exercised and WE WILL make
whole Donald Mendez, Kevin Daley, Joshua Weider, Duane
Douglas, and Anthony Durand-Gonzales for any loss that they
suffered as a result of their suspensions on about March 4,
March 16, April 29, and May 31.
WE WILL discuss and bargain in good faith with the Union
about grievances that it files and WE WILL, upon receipt of in-
formation requests from the Union that are necessary for, and
relevant to the Union as the collective-bargaining representative
of certain of its employees, provide the Union with the infor-
mation in a reasonable and timely manner.
PARAGON SYSTEMS, INC.