SECURITY WALLS, LLC

National Labor Relations Board - Board Decisions

Jun 15, 2017

365 NLRB No. 99 (N.L.R.B. 2017)

365 NLRB No. 99
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.
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 Ar-
thur 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 bar-
gain with the Charging Party Union over those discharg-
es. 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, find-
ings, and conclusions, to modify the recommended rem-
edy, and to adopt the recommended Order as modified
and set forth in full below.1
I. 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 Un-
ion, 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 Schnei-
der, 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 pro-
ceeding 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 ser-
vices 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 lo-
cations where the contractor has contracts with the IRS
should it be determined that the employee has been
disqualified for either employment suitability, perfor-
mance 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 deter-
mination 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 re-
quired 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 condi-
tions are cause for immediate removal from performing
on the contract:

2 The Respondent and the Union reached tentative agreement in Au-
gust 2014 on some issues (including grievance and arbitration, disci-
pline, and discharge), but only agreed to implement procedures for
same-day sick leave. The parties ultimately executed a collective-
bargaining 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 of-
fenses, including the following:
Section 6.4.4.21: Neglecting duties by sleeping while
on duty, failing to devote full-time and attention to as-
signed duties…or any other act that constitutes neglect
of duties…
Subsequently, on April 25, 2014, the Respondent uni-
laterally adopted a “Disciplinary Action/Policy State-
ment.”4 The policy, signed by Scott Carpenter, the Re-
spondent’s project manager for the IRS contract, and
Juanita Walls, the Respondent’s chief manager, specifi-
cally states that: “This policy statement is the official
policy of “Security Walls” and supersedes all other poli-
cies concerning this subject.” The Disciplinary Ac-
tion/Policy Statement sets forth a detailed progressive
disciplinary system which lists specific violations and the
corresponding disciplinary actions. Several of these vio-
lations, such as refusal to assist or cooperate in investiga-
tions, 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 discipli-
nary 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 re-
ported 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 momen-
tarily 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 presi-
dent, emailed Site Supervisor Frederico Salazar, stating
that, “As Local Union President, I have some issues I
needed [sic] to address regarding my and Officer Schnei-
der’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 vio-
lation of the Act.
1) Why were myself and Officer Schneider not given
anything in writing regarding the policy him and I vio-
lated 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 write-
ups, 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 my-
self, 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 com-
pany 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 re-
quested 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 Se-
curity Walls Disciplinary Action/Policy Statement be
applied and interpreted fairly, conscientiously, without
discrimination, and to the best interest of efficient securi-
ty 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
so that the guards are paying greater attention to details
so we don’t miss these types of incidents.”
On April 28, the Respondent’s site supervisor Salazar
met with Schneider, Klabunde, and Marinez and told
them that they were terminated. The next day, the Re-
spondent’s corporate counsel, Ed Holt, sent the Union a
letter entitled “Response to Grievance regarding Officer
Marinez” stating that the actions of the three guards fell

5 In his testimony, Carpenter identified Sears as the COR multiple
times without contradiction and explained, “His job involves reporting
to the Contracting Officer on our performance, on our adherence to the
Performance Work Statement, and on our management and oversight of
this contract.” There is no reference to any other IRS contact point
regarding discipline.
SECURITY WALLS, INC. 3
outside the purview of the Respondent’s discipline policy
and were governed by the PWS. The letter then stated
that the three guards would remain on suspension pend-
ing a final decision by Chief Manager Walls, which Holt
expected would be received in 3 days. The letter con-
cluded: “This is not an offer to bargain. Nor is it an offer
to invoke the grievance procedure contained in the
agreements tentatively agreed to in August 2014.” On
May 1, Holt sent an email to Chief Steward Orlando
Marquez, stating that Salazar did not have the authority
to terminate the guards, that the guards were not termi-
nated at that time, and that the Respondent would notify
the Union when Chief Manager Walls made her final
decision. The record does not show that Walls ever is-
sued such a decision.
On May 3, Marquez emailed Holt demanding rein-
statement and make-whole relief for the three guards and
informed Holt that the Union would file a charge with
the Board if the Respondent did not meet its demands.
The Respondent did not respond to the Union’s demand,
nor did it notify the Union of a final decision by Walls.
On May 14, 2015, the Union filed an unfair labor prac-
tice charge.
II. DISCUSSION
The judge found that the Respondent unilaterally and
unlawfully changed its disciplinary policy when it dis-
charged the guards and that it unlawfully refused to bar-
gain with the guards’ Union following their discharges.
The judge rejected the Respondent’s argument that the
PWS mandated the discharges, obviating any statutory
duty to bargain. The judge found that the progressive
disciplinary system memorialized in the Respondent’s
Disciplinary Action/Policy Statement, which by its terms
supersedes the PWS, did not make the discharges a man-
datory as opposed to a discretionary penalty. The judge
further found that even the PWS did not mandate the
discharges; rather, it vested the IRS COR with the au-
thority to demand discharges or lesser penalties for PWS
violations and that IRS COR Sears did not demand that
the Respondent discharge the guards. The judge also
noted that the Respondent admitted in its answer to the
complaint that it exercised discretion in discharging the
guards. Finally, the judge found that the post-discipline
correspondence between representatives of the Union
and the Respondent was sufficient to invoke Respond-
ent’s bargaining obligation concerning the discharges.
A. Unilateral Changes
We agree with the judge that the Respondent unilater-
ally changed its progressive disciplinary policy, set forth
in its April 2014 Disciplinary Action/Policy Statement,
when it treated the discharge of the three guards as a
mandatory penalty. As the judge found, neither the April
2014 Disciplinary Action/Policy Statement, nor the PWS
that was superseded by the April 2014 policy, mandated
that the Respondent discharge the guards and that the
Respondent unilaterally departed from its stated policies
in treating the discharges as mandatory.
The PWS, posted in March 2014, directs the Respond-
ent to maintain disciplinary standards and provides that
the IRS may request the removal, retraining, or suspen-
sion of any employee for failing to maintain proper
standards of conduct. Thus, under the PWS the IRS CO
or the COR had the authority to order the Respondent to
discharge employees for violations of the PWS. At the
time of the discharges, Sears was the COR, and the rec-
ord shows that Sears not only had the ability to order
contractors to discharge employees, he exercised that
ability at least once in the past.6 However, in addressing
his concerns with the Respondent about the guards’ mis-
conduct here, Sears did not instruct the Respondent to
discharge them. Nor did he inform the Respondent that
its contract with the IRS was in jeopardy because of the
guards’ infractions.7 Thus, even under the PWS, the Re-
spondent was not required to discharge the guards. This
finding is also consistent with the Respondent’s admis-
sion in its answer to the complaint that discharging the
guards was within its discretion.
Moreover, almost 2 months after the Respondent post-
ed the PWS, it established its April 2014 Disciplinary
Action/Policy Statement which, by its express terms,
supersedes all prior disciplinary policies. That Discipli-
nary Action/Policy Statement lists, with great specificity,
offenses that serve as grounds for immediate discharge.
For all other offenses, it establishes a progressive system.
Security breaches, such as the ones at issue, are not listed
as gross misconduct requiring immediate dismissal. In-
stead, they are listed under the Respondent’s progressive
disciplinary system as warranting a 2-day suspension for
a first offense or—if the employee has prior offenses—
discharge. None of the discharged guards had a prior

6 By specifically quoting Sec. 1.6.33 of the PWS, (“NOTE: The CO
will make all determinations regarding the removal of any employee
. . . .”), our colleague implies that the COR may not have the ultimate
authority to make discharge decisions. However, our colleague con-
cedes that two other provisions of the PWS “appear to give the COR
the authority” to order discharges. Further, the record shows that Sears
was the Respondent’s IRS contact point on matters involving the PWS.
Nothing in the hearing testimony, exhibits, or even the Respondent’s
motion to reopen the record identifies a CO or other higher-ranking
individual charged with enforcing the Respondent’s contract with the
IRS. Moreover, the Respondent has not argued that Sears was not its
agent or was acting outside the scope of his authority.
7 The PWS provides that the contractor (i.e., the Respondent) can be
immediately removed from performance of the contract for one of the
listed infractions, including its employees’ neglect of duty.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
offense. Thus, by discharging Schneider, Klabunde, and
Marinez, the Respondent departed from this policy. We
therefore agree with the judge that the Respondent vio-
lated Section 8(a)(5) of the Act when it unilaterally
changed its established disciplinary policy by discharg-
ing the three guards.8
B. Refusal to Bargain
We agree with the judge’s finding that the Respondent
unlawfully refused to bargain with the Union following
the discharge of the three guards. The Respondent, in its
exceptions, argues that it satisfied its bargaining obliga-
tion because during the course of its negotiations for a
collective-bargaining agreement, it had bargained with
the Union over discipline and grievance procedures and
had tentative agreements in place on these matters that
were identical to that of its predecessor. The Respondent
argues that because these provisions had been collective-
ly bargained, it had no further obligation to bargain over
the discharges. However, it is well-established that ten-
tative agreements made during collective-bargaining
negotiations are not binding upon the parties until a final
collective-bargaining agreement is reached. Taylor
Warehouse Corp., 314 NLRB 516, 517 (1994) (“Under
Board law, tentative agreements made during the course
of contract negotiations are not final and binding.”),
enfd. 98 F.3d 892 (6th Cir. 1996). Further, it is undis-
puted that the Respondent never bargained with the Un-
ion over the discharge of the three guards specifically.
And notwithstanding the Respondent’s claim that it
agreed to the same grievance procedures as its predeces-
sor, it refused to follow those procedures.9

8 Our dissenting colleague argues that the Respondent’s Disciplinary
Action/Policy Statement did not supersede the PWS, notwithstanding
the clear statement in the Respondent’s policy that it supersedes all
prior disciplinary policies. As a non-personal services contract between
the Respondent and the IRS, the PWS reflects the agreement between
the Respondent and the IRS, but not necessarily between the Respond-
ent and its own employees. Rather, the PWS expressly delegates to the
Respondent the role of setting and enforcing a disciplinary policy con-
sistent with its listed parameters. There is no dispute that the Respond-
ent’s Disciplinary Action/Policy Statement serves that function; in fact,
it may well be that the policy represents the Respondent’s attempt to
conform its disciplinary policy to the PWS guidelines. Further, neither
the Disciplinary Action/Policy Statement nor the collective-bargaining
agreement ultimately entered into with the Union even mentions the
PWS. Consequently, we look to the disciplinary policy that actually
governed the Respondent and its employees.
9 On April 28, in response to the Union’s grievance and correspond-
ence seeking to address the suspensions with the Respondent, the Re-
spondent sent a letter to the Union stating that the guards would remain
on suspension pending a final decision by Respondent’s chief manager,
expected in 3 days, and that it was not offering “to invoke the grievance
procedure contained in the agreement tentatively agreed to in August
2014.”
Our dissenting colleague—in contrast to the Respond-
ent—argues that we must reverse the judge because the
Union did not adequately request bargaining over the
discharges. As this argument is raised for the first time
by our colleague in dissent, it is not properly before the
Board. See UPS Supply Chain Solutions, Inc., 364
NLRB No. 8, slip op. at 2 (2016) (Board Member’s dis-
senting argument not made by excepting party is not pro-
cedurally before the Board). Even if we were to consider
it, we would find it lacking in merit.
The Board has never required a union to employ some
combination of magic words to express a request to bar-
gain. Rather, a request for bargaining “need take no spe-
cial form, so long as there is a clear communication of
meaning.” Armour & Co., 280 NLRB 824, 828 (1986),
quoting Scobell Chemical Co. v. NLRB, 267 F.2d 922,
925 (2d Cir. 1959). The Board has found that a union’s
request that an employer rescind a unilateral action, cou-
pled with a threat to file an unfair labor practice if the
employer does not do so, is sufficient to express a re-
quest to bargain. See Indian River Memorial Hospital,
340 NLRB 467, 468–469 (2003). Additionally, it is clear
from the Union’s request for relevant information that it
was seeking to bargain over the nature of the disciplines
being imposed. See Richmond Division of Pak-Well, 206
NLRB 260, 261 (1973), citing Rod-Ric Corp., 171
NLRB 922, (1968), enfd. 428 F.2d 948 (5th Cir. 1970);
cert. denied 401 U.S. 937 (1971).10 Finally, any doubt
that an employer may have as to whether a union has
made a bargaining request is resolved when a union files
an unfair labor practice charge. Trucking Water Air
Corp., 276 NLRB 1401, 1407 (1985).11

10 See also Carina Bay Resort, 356 NLRB 273, 274, fn. 6 (2010),
enfd. 451 Fed. Appx. 143 (3rd Cir. 2011); Biewer Wisconsin Sawmill,
306 NLRB 732, 732 fn. 4 (1992). We note that while the parties were
not in an initial bargaining posture, as in the cases above, they were in
the process of bargaining for a first contract with the Respondent as a
successor. As such, the Union’s questioning the Respondent on its
actions and policies pertaining to the guards’ disciplines, sought not
only to learn the basis for these disciplines but also information as to
how the Respondent was administering its recently-announced discipli-
nary policy. There is no doubt that the Respondent understood this; its
primary argument on exceptions is that it satisfied its bargaining obliga-
tion over the disciplines through contract bargaining.
11 See also Sewanee Coal Operators Assn., 167 NLRB 172, 172 fn. 3
(1967); Roberts Electric Co., Inc., 227 NLRB 1312, 1319 (1977). As
our colleague acknowledges, in Sewanee, the Board found that the
filing of a charge amounted to “a renewal of the Union’s request to
bargain [and] it constituted a clear and unmistakable notice to the Re-
spondent that the Union intended to exercise the rights flowing from its
certification and, as such, was tantamount to an explicit request to
bargain.” The Board concluded that the Respondent’s refusal to bar-
gain following the charge constituted “another refusal to bargain.” Our
dissenting colleague reads Sewanee and Trucking Water Air, supra, as
requiring an initial request to bargain which is later “renewed” by an
unfair labor charge. But he fails to take into account the Union’s com-
SECURITY WALLS, INC. 5
In this case, all the above considerations took place.
The Union first sought information as to the grounds for
the suspensions (later discharges). In so doing, the Un-
ion’s communications were the initial steps in an at-
tempted back-and-forth communication with the Re-
spondent over the discharges and the Respondent’s ap-
plication of its rules. Specifically, following his suspen-
sion, Klabunde, in his capacity as the Union’s Local
president, sent the Respondent an email stating that, “As
Local Union President I have some issues I needed to
address regarding my and Officer Schneider’s suspen-
sion.” Klabunde then listed five questions requesting
details about the suspensions, asking whether there was a
written policy underlying the suspensions, and seeking
clarification as to the duration of the suspensions. Thus,
Klabunde, in his capacity as formal representative and
leader of the Union, sought to discuss with the Respond-
ent the suspensions that became discharges and the basis
of this discipline.
The Union then protested the discharges through its
grievance in which Klabunde renewed his request for
information, emphasizing that the parties needed to work
together to ensure that the Respondent’s Disciplinary
Action/Policy Statement was applied and interpreted
fairly and in the best interest of efficient security opera-
tions. In response, the Respondent cited the PWS as the
governing policy and stated that “This is not an offer to
bargain. Nor is it an offer to invoke the grievance proce-
dure contained in the agreements tentatively agreed to in
August 2014.” At this point, then, the Respondent effec-
tively closed any avenue of communication and refused
to provide the Union with the basis for the discharges.
Indeed, the Respondent would not even concede that the
guards had, in fact, been discharged.
The Union again contacted the Respondent demanding
reinstatement of the guards and other relief. It was only
at this point that the Union stated its intention to file
charges with the Board if the Respondent did not address
its demands. During this time, the Respondent continued
to stonewall the Union’s requests by stating that no dis-
charges occurred—even after the employees themselves
were told that they were discharged.
Under these circumstances, we find that the Union ad-
equately communicated its desire to bargain with the
Respondent over the discharges.12 Further, any doubt

munications seeking to address with the Respondent the disciplines and
the Respondent’s disciplinary policy. He also ignores the Respondent’s
continued refusal to bargain even when presented with incontrovertible
evidence of the Union’s desire—in the form of a Sec. 8(a)(5) refusal to
bargain charge—to do so.
12 Thus, the cases cited by our colleague are distinguishable. See,
e.g., The Emporium, 221 NLRB 1211, 1214 (1975) (union attended
bargaining session over proposed closure of certain facilities but re-
that the Respondent may have had over whether the Un-
ion sought to bargain should have been dispelled when
the Union filed the instant charges with the Board.13 We
therefore agree with the judge that the Respondent vio-
lated Section 8(a)(5) of the Act by refusing to bargain
with the Union over the discharge of the three guards.14
Our dissenting colleague further argues for a reversal
of the judge’s refusal to bargain finding on yet another
ground that was never raised by the Respondent, either to
the judge or to the Board. The dissent contends that the
judge’s finding violated the Respondent’s due process
rights because the General Counsel’s complaint did not
allege a “post-discharge” failure to bargain. As with our
colleague’s previous argument—raised solely by him and
not the Respondent—this argument is not properly be-
fore the Board. See UPS Supply Chain Solutions, Inc.,
364 NLRB No. 8, slip op. at 2. However, even if it were
before us, it is similarly without merit.

fused to make proposals or request information); Associated Milk Pro-
ducers, 300 NLRB 561, 563–564 (1990) (employer offered to discuss
planned discontinuation of pension fund contributions with the union
before implementation, but the union failed to communicate with the
employer in any manner until after the change was implemented, and
the union had already filed charges with the Board).
Further, we are not persuaded by our colleague’s attempt to distin-
guish the cases cited above as involving “some reference to a dialogue”
that, our colleague contends, is absent here. As set forth above, the
Union clearly attempted to engage in a dialogue over the discharges
through the information requests (prefaced by Klabunde’s statement, “I
have some issues I needed to address”), as well as through the Union’s
grievance, which by its very nature contemplates a dialogue between
the Respondent and the Union. The fact of the matter is that the Re-
spondent shut down all attempts at communication by the Union before
it could engage in any meaningful dialogue over the discharges.
13 See Sewanee Coal Operators, discussed supra.
14 Contrary to our colleague, we do not find that the Sixth Circuit
Court of Appeals’ decision in Ohio Edison Co. v. NLRB, 847 F.3d 806
(6th Cir. 2017), compels a different result. The court in Ohio Edison
emphasized that in determining whether a union requested bargaining,
it is essential to examine the “substance of a request, not the form” and
consider “all the circumstances.” Id. at 810. The circumstances here
present an even stronger case for finding that the Respondent was
aware that the Union sought to bargain over the discharges. For exam-
ple, in Ohio Edison the employer unilaterally changed a minor reward
program that the parties had never bargained over and was not included
in the parties’ collective-bargaining agreement. The court explained
that the Union’s expression of disapproval over the change and empty
threat—which it failed to follow through on for 6 weeks—to come to
the employer’s headquarters to confront the employer’s CEO (who had
no control over labor relations) were insufficient to convey the union’s
desire to bargain over the unbargained reward program. By contrast, as
set forth above, the Union here engaged in much more than a solitary
oral protest, or as our colleague would suggest, “issue[] a list of de-
mands”; it sought information, filed a grievance, repeatedly sought to
determine the basis for the discharges, advised the Respondent of its
desire to work with the Respondent to ensure that its disciplinary policy
was fairly applied, threatened to file Board charges due to the Re-
spondent’s inadequate responses, and ultimately filed a charge with the
Board.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Contrary to our colleague’s repeated references to
“pre-discharge” and “post-discharge” bargaining, the
complaint makes no such distinction. Rather, the com-
plaint broadly alleges that the Respondent unlawfully
suspended and terminated the three guards “without prior
notice to and without affording the Union an opportunity
to bargain . . . .” Given the facts here, where the Re-
spondent suspended the employees and gave conflicting
statements as to whether they were discharged, the com-
plaint’s broad allegation is entirely appropriate. Further,
even under our colleague’s restrictive reading of this
allegation to encompass only pre-decisional bargaining, a
post-discharge violation would nonetheless be closely
connected to the allegation, and the parties fully litigated
the issue. Accordingly, we would not find that the Re-
spondent was deprived of due process, even were that
argument properly before us.15
Under well-settled Board precedent, the Board may
find a violation and provide a remedy for a violation of
the Act in the absence of a specific complaint violation if
the issue is closely connected to the subject matter of the
complaint and has been fully litigated. Pergament Unit-
ed Sales, Inc., v. NLRB, 920 F.2d 130, 135 (2d Cir.
1990), enfg. 296 NLRB 333 (1989). The essential in-
quiry as to whether a matter has been fully litigated
“rests in part on ‘whether the respondent would have
altered the conduct of its case at the hearing, had the spe-
cific allegation been made.’” Piggly Wiggly Midwest,
LLC, 357 NLRB 2344, 2345 (2012) (quoting Pergament,
supra at 335).
We find that both prongs of Pergament are satisfied
here. First, it is clear that the post-discharge failure to
bargain is closely related to the pre-discharge failure.
Both the pre- and post-discharge failures to bargain alle-
gations arise out of the same set of interactions between
the Respondent and the Union. In particular, because the
Respondent never definitively informed the Union that
the guards were, in fact, discharged, it is difficult to draw
the line as to when a pre-discharge bargaining obligation
ended and a post-discharge bargaining obligation began.
Indeed, even as late as May 3, the Respondent main-
tained that Site Supervisor Salazar did not have authority
to terminate the guards and that the Union would be ad-
vised when a decision had been made; however, no such
decision was ever communicated to the Union or the

15 Contrary to our colleague, our recent decision in Security Walls,
LLC, 365 NLRB No. 52 (2017), is not at odds with our findings here.
In that default judgment case, the parties stipulated to facts surrounding
the Respondent’s alleged failure to engage in pre-discharge bargaining.
Under those circumstances, the Board was constrained by the stipula-
tion to consider solely that allegation.
three guards, nor were discharge documents ever entered
into evidence.
Further, the Respondent does not contend that it would
have proffered additional evidence or legal argument had
the complaint been worded differently. Indeed, at the
hearing the parties elicited testimony and exhibits detail-
ing all of the communications between the Respondent
and the Union as well as any events that occurred be-
tween the April 2015 suspensions and the filing of the
charge in this case. Moreover, the Respondent’s legal
arguments both before the judge and in its motion for
reconsideration do not distinguish between pre- and post-
discharge bargaining. Rather, the Respondent argues
that it never had a bargaining obligation because the dis-
charges were not discretionary and even if it did, the Re-
spondent satisfied its obligation through contractual bar-
gaining. As such, we find no indication that the Re-
spondent would have altered its legal or factual presenta-
tion had the complaint contained a specifically worded
post-discharge allegation. We therefore reject our col-
league’s contention that the Respondent was deprived of
due process by the judge’s finding that the Respondent
unlawfully refused to engage in post-discharge bargain-
ing.
C. The Respondent’s Motion to Reopen the Record
On March 16, 2016—nearly 2 months after the judge
issued his decision—the Respondent moved to reopen
the record to introduce evidence regarding events that
occurred after the close of the hearing. On March 27,
2016, the Respondent filed a supplement to the motion,
including an affidavit from Chief Manager Walls stating
that, following the Respondent’s offer of reinstatement to
the guards, IRS Senior Contract Specialist Bernadette
Briggs emailed Walls on March 9, 2016, that the IRS
would not permit the guards to perform services under
the contract. In its motion, as supplemented, the Re-
spondent argues that this information precludes a finding
that the 2015 discharges were discretionary and obviates
any bargaining obligation it may have had over the dis-
charges. Based on this evidence, the Respondent re-
quests that the Board allow it to withdraw the admission
in its answer that its discharges of security guards
Schneider, Klabunde, and Marinez were discretionary.
We deny the Respondent’s motion.
The Respondent’s motion makes no showing that the
evidence the Respondent seeks to introduce would re-
quire a different result, as required under Section
102.48(d)(1) of the Board’s Rules and Regulations.16

16 Sec. 102.48(d)(1) of the Board’s Rules and Regulations provides,
in pertinent part:
SECURITY WALLS, INC. 7
Moreover, Respondent has not met the Board’s require-
ment of showing that the evidence existed at the time of
the hearing, much less that it acted with diligence in un-
covering the evidence. See Fitel/Lucent Technologies,
Inc., 326 NLRB 46, 46 fn. 1 (1998). At the time of the
discharges, IRS COR Sears did not demand the discharge
of the three guards. Nor did the Respondent argue dur-
ing the proceeding before the judge that any other IRS
representative demanded the discharge of the guards.
Thus, the Respondent seeks to introduce evidence of
events that occurred after the violations alleged in this
case—evidence, which, by definition, is not “newly dis-
covered” or “previously unavailable” under the Board’s
rules. See Harry Asato Painting, Inc., 2015 WL
5734974 (2015); Allis-Chalmers Corp., 286 NLRB 219,
219 fn. 1 (1987) (denying motion for reconsideration to
accept evidence of events that occurred after the hearing
closed).17 That a different IRS representative assertedly
determined—some 10 months after the discharges and
after the judge had found that the Respondent acted un-
lawfully—that the guards’ offenses prevented reinstate-
ment would not affect the finding here that the Respond-
ent exercised discretion in discharging the guards,18 nor
would it otherwise excuse Respondent’s obligation to
bargain over the discharges.19

A party to a proceeding before the Board may, because of extraordi-
nary circumstances, move for . . . reopening of the record after the
Board decision or order. . . . A motion to reopen the record shall state
briefly the additional evidence sought to be adduced, why it was not
presented previously, and that, if adduced and credited, it would re-
quire a different result. Only newly discovered evidence, evidence
which has become available only since the close of the hearing, or ev-
idence which the Board believes should have been taken at the hearing
will be taken at any further hearing.
17 Our colleague would broaden the scope of the Sec. 102.48(d)(1) of
the Board’s rules to include posthearing events under the definition of
“evidence which has become available only since the close of the hear-
ing.” We decline to do so. As stated above, Board precedent is clear:
evidence pertaining to events that occurred after the close of the hear-
ing is not considered by the Board in a motion to reopen the record.
18 Our colleague argues, somewhat paradoxically, that the Respond-
ent should not be held to its admission that the discharges were discre-
tionary because at the time, extant Board precedent (namely Fresno
Bee, 337 NLRB 1161 (2002)), held that discipline imposed under a pre-
existing policy does not constitute a unilateral change even if the disci-
pline was discretionary. However, we perceive no reason why a party
should be relieved of its admission to a factual matter. That the Re-
spondent exercised discretion in discharging the three guards should
not change based on the General Counsel’s theory of a violation. As
set forth in detail above, we find that neither the PWS nor the Respond-
ent’s Disciplinary Action/Policy Statement mandated these discharges.
As such, the Respondent’s admission is consistent with, but not an
indispensable part of, the evidence underlying this finding.
19 Indeed, in Manager Walls’ affidavit, she asserts her speculative
belief “that if Ms. Briggs or the COR were aware of circumstances
surrounding the three officers in April 2015, they would have taken the
same position as when they became aware of the incidents recently”
ORDER
The National Labor Relations Board orders that the
Respondent, Security Walls, LLC, Austin, Texas, its of-
ficers, agents, successors, and assigns, shall take the fol-
lowing affirmative action necessary to effectuate the pol-
icies of the Act.
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with the International Union, Security, Police
and Fire Professionals of America (SPFPA) as the exclu-
sive collective-bargaining representative of all full-time
and regular part-time security officers employed by the
Respondent at the International Revenue Service Center
and affiliated buildings in Austin, County of Travis, Tex-
as.
(b) 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 unilateral change to its progressive dis-
cipline policy.
(b) Offer unit employees Jason Schneider, John Kla-
bunde, and Christopher Marinez full reinstatement to
their former positions, or if those positions no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(c) Make Jason Schneider, John Klabunde, and Chris-
topher Marinez whole for any loss of earnings and other
benefits suffered as a result of the unlawful discipline, in
the manner set forth in the remedy section of the judge’s
decision, as modified herein.

(i.e., nearly a year after the discharges and nearly 2 months after the
judge’s decision). But the record evidence shows that Sears, as the
COR, was aware of the incidents in April 2015, and did not demand
that the guards be discharged. In any event, Walls’ speculation does
not demonstrate that the IRS was unaware of the discharges in 2015 or
that it would have acted differently than it actually did; Briggs’ email,
in turn, does not purport to address either point.
Our dissenting colleague argues that we should allow the Respond-
ent to introduce evidence showing that Sears had no authority to de-
mand the removal of the guards and that he failed to report the incident
to an IRS representative with such authority. We disagree. The Re-
spondent’s representatives, particularly Carpenter, testified without
contradiction that COR Sears was the contact point for the IRS on
matters related to the PWS. Further, as noted above, the record shows
that Sears advised the Respondent and its predecessor on personnel
matters and had directed the discharge of at least one employee in the
past. The Respondent does not explain why it could not have pursued
the issue of Sears’ authority during the hearing. In any event, even if
the IRS were shown to have subsequently disagreed with Sears’ con-
duct, this would not alter the Respondent’s duty to bargain with the
Union at the time of the discharges.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Compensate Jason Schneider, John Klabunde, and
Christopher Marinez for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 16 within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay award to the appropriate calendar years.”
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter notify Jason Schneider, John
Klabunde, and Christopher Marinez in writing that this
has been done and that the discharges will not be used
against them in any way.
(f) Within 14 days from the date of this Order, notify
the Internal Revenue Service of this Decision and Order.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Austin, Texas facilities, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 16, 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,
the 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. In the event that, during the penden-
cy of these proceedings, 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 April 28, 2015.

20 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.”
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 16 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.
Dated, Washington, D.C. June 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
This case is a little bit complicated. It involves three
discharges by the Respondent, Security Walls, of three
armed security guards who were supposed to prevent
unauthorized persons from entering a secure facility pur-
suant to Respondent’s contract with a government agen-
cy, the Internal Revenue Service (IRS), which main-
tained an office there. The Board’s administrative law
judge ruled that the three discharges violated the Nation-
al Labor Relations Act (NLRA or Act). Consistent with
the judge’s ruling, the Respondent started the process of
reinstating the three security guards. However, after the
Respondent had commenced that process, the Respond-
ent’s client—the IRS—invoked its right to require the
removal of the three security guards, who were dis-
charged because they permitted unauthorized persons to
get past them and enter the secure facility. It is uncon-
troverted that the IRS had the right to direct the Re-
spondent to remove the three security guards. Nonethe-
less, my colleagues deny the Respondent’s motion to
reopen the record and to amend its answer (which con-
tained an admission that the discharge of the three guards
had been discretionary). I dissent because, in my view,
the Board should grant Respondent’s motion to reopen
the record and to amend its answer. I also believe the
judge erroneously found that the security guards’ dis-
charges were unlawful.
DISCUSSION
As noted above, this case involves the discharge of
three armed security guards who neglected one of their
primary duties when they permitted unauthorized persons
to gain entry to a secure federal facility that housed an
office of the IRS. On April 15, 2015, security guards
Jason Schneider and John Klabunde failed to notice an
SECURITY WALLS, INC. 9
unauthorized person entering the facility. (At the time,
Schneider and Klabunde were correcting an administra-
tive error in a logbook.) On April 22, 2015, two other
unauthorized persons walked into the facility undetected
by security guard Christopher Marinez (who was preoc-
cupied with adjusting the height of his chair). The Re-
spondent suspended and then discharged the three guards
in accordance with Section 6.4.4 of the Performance
Work Statement (PWS), a contract that spells out what
the “contractor” (here, the Respondent) is required to do
by the “Government” (in this context, the IRS). Section
6.4.4 of the PWS states that “[t]he contractor is . . . re-
sponsible for ensuring that their employees conform to
acceptable standards of conduct.” Section 6.4.4 lists a
number of “actions, behavior or conditions” that consti-
tute “cause for immediate removal from performing on
the contract.” Among the infractions that constitute
“cause for immediate removal” is “failing to devote full
time and attention to assigned duties.” See PWS Section
6.4.4.21; see also Section 1.6.32.4.22 (Respondent’s Ex-
hibit 1, pp. 27, 57).
The judge rejected the Respondent’s argument that
Section 6.4.4 in the PWS mandated the discharges. In
doing so, the judge relied on the absence of evidence that
the IRS actually demanded that the three officers be re-
moved from the contract as well as an admission—in the
Respondent’s answer to the complaint—that the dis-
charges were discretionary.1 The judge then found that
the applicable disciplinary standards were those set forth
in the Respondent’s progressive discipline policy2 and
that the discharges deviated from that policy, which did
not list allowing unauthorized persons to enter the facili-
ty among infractions warranting immediate termination.
Consequently, the judge found that the Respondent im-
plemented an unlawful unilateral change to its progres-
sive discipline policy when it discharged the three em-
ployees, in violation of Section 8(a)(5) of the Act.3 My
colleagues agree with the judge’s finding and rationale.
The complaint alleged that the Respondent additional-
ly violated Section 8(a)(5) of the Act by discharging the
three security guards without giving the Union pre-

1 The Respondent moves to withdraw this answer. For the reasons
set forth below, I would grant the Respondent’s motion.
2 The judge found that the PWS was superseded by the progressive
discipline policy on the basis that the progressive discipline policy
postdated the PWS and states that it “supersedes all other policies con-
cerning this subject.” The judge also noted that the Respondent’s con-
tention that the PWS mandated the discharges was “somewhat incon-
sistent” with its admission that it exercised discretion in discharging the
three guards.
3 In NLRB v. Katz, 369 U.S. 736, 747 (1962), the Supreme Court
held that unilateral changes in employment terms—i.e., changes made
without giving the union reasonable notice and the opportunity for
bargaining—violate Sec. 8(a)(5).
discharge notice and opportunity to bargain over the dis-
charge decisions. The judge dismissed that allegation
but found, sua sponte, an additional, unalleged violation
of Section 8(a)(5): that the Respondent failed to engage
in post-discharge bargaining concerning the discharge
decisions. In this regard, on May 3, 2015, the Union
emailed the Respondent demanding that it reinstate the
employees immediately and make them whole and
threatening to file unfair labor practice charges if the
Respondent failed to accede to its demand. The judge
found that this email was not “a formal demand for bar-
gaining,” but he held it was “sufficient to invoke Re-
spondent’s obligations to bargain.” Again, my col-
leagues agree.
The judge issued his decision on January 21, 2016, in
which he ordered the Respondent to reinstate the dis-
charged officers. The Respondent did so, and the three
officers commenced refresher training and firearms qual-
ification on February 29, 2016.
On March 16, 2016, the Respondent filed with the
Board exceptions and a supporting brief. On the same
day, the Respondent also filed a motion to reopen the
record and remand the case to the judge, together with a
sworn affidavit from its chief manager, Juanita Walls,
and an email from IRS Senior Contract Specialist Berna-
dette Briggs. In the affidavit, Walls averred that on
March 9, 2016, she received an email from Senior Con-
tract Specialist Briggs, which stated that Marinez,
Schneider, and Klabunde “will not be permitted to per-
form services under this contract, effective immediately.”
Briggs ordered the removal of Marinez, Schneider and
Klabunde based on Section 6.4.4 in the PWS, the same
provision relied upon by the Respondent in defense of
the discharges—namely, “failing to devote full time and
attention to assigned duties.” The affidavit also ex-
pressed Walls’ belief that Briggs would have taken the
same position at the time of the discharges had she been
aware of the relevant circumstances at that time.4 The

4 At the time of the discharges, IRS representative John Sears was
the Contracting Officer’s Representative (COR); Sears was aware of
the officers’ misconduct; and although Sears deemed the misconduct a
dischargeable offense, he did not demand that the officers be removed
from performing on the Respondent’s contract with the IRS. Two
sections in the PWS appear to give the COR authority to issue such a
removal demand. PWS Sec. 6.4.3 provides that the COR and the Con-
tracting Officer (CO) “have the authority to cause the . . . removal of
any Contract employee from the contract who does not meet and adhere
to the Standards of Conduct as required in this contract,” and PWS Sec.
1.6.33 similarly provides that “[t]he CO and/or COR may require . . .
dismissal of any Contract employee deemed careless, incompetent,
insubordinate, unsuitable, or otherwise objectionable during the per-
formance of duties associated with the Contract.” However, immedi-
ately following Sec. 1.6.33, the PWS adds the following: “NOTE: The
CO will make all determinations regarding the removal of any employ-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent contends that the record should be reopened
to receive this additional evidence because the evidence
would establish that (i) the Respondent had no choice but
to discharge the three security guards, obviating any duty
to bargain regarding the discharges; and (ii) reinstate-
ment and an award of backpay are inappropriate reme-
dies. On March 27, 2016, the Respondent filed a sup-
plement to its March 16 motion, requesting the Board’s
permission to amend its answer and deny the allegation
that the discharges of the three security guards were dis-
cretionary. My colleagues deny the Respondent’s mo-
tion to reopen the record as well as its supplement to that
motion.
I respectfully dissent from my colleagues’ decision in
three respects.
1. The Respondent’s Motion to Amend its Answer and
to Reopen the Record. I would permit the Respondent to
amend its answer in order to deny the allegation that the
discharge decision was discretionary, and I would grant
the Respondent’s motion to reopen the record and for a
remand to the judge to allow him to receive the proffered
evidence and reconsider, in light of that evidence, wheth-
er the discharges were mandated by the PWS and there-
fore not subject to bargaining.
I believe that the circumstances of this case make it
unfair for the judge and my colleagues to hold the Re-
spondent to its admission, in its answer to the complaint,
that the decision to discharge the security officers was
discretionary. The complaint alleged one and only one
unfair labor practice: that the Respondent had violated
Section 8(a)(5) by discharging the security officers
“without prior notice to the Union and without affording
the Union an opportunity to bargain.” At the time the
complaint issued (September 29, 2015), extant Board
precedent held that where an employer discharges an
employee pursuant to a preexisting policy, the employer
has no duty to give the union notice and opportunity to
bargain in advance of the discharge decision even if, in
making that decision, the employer exercises discretion
in applying the policy.5 Accordingly, when it answered

ee from any or all locations where the contractor has contracts with the
IRS.” Consistent with PWS Sec. 1.6.33, the Respondent’s IRS project
manager, Scott Carpenter, testified that COR Sears’ “job involves re-
porting to the Contracting Officer . . . on [the Respondent’s] adherence
to the PWS.”
5 See Fresno Bee, 337 NLRB 1161 (2002). In Fresno Bee, the
Board dismissed a similar 8(a)(5) allegation, reasoning that when an
employer does not change a preexisting disciplinary policy but merely
applies it in imposing discipline, the imposition of that discipline does
not constitute a unilateral change, notwithstanding that the employer
exercises discretion in applying the policy. Id. at 1186–1187. The
Board subsequently overruled Fresno Bee in Alan Ritchey, Inc., 359
NLRB 396, 402 (2012). However, Alan Ritchey was decided by a
three-member panel, two members of which were serving recess ap-
the complaint, the Respondent had every reason to be-
lieve that it was immaterial whether it admitted or denied
exercising discretion when it decided to discharge the
security officers. Subsequently, the judge relied in part
on the Respondent’s admission to find that the Respond-
ent unilaterally changed its progressive discipline policy
when it discharged the security officers—an unfair labor
practice not alleged in the complaint6—and my col-
leagues also rely on the admission. In these circum-
stances, I believe fairness requires that the Board permit
the Respondent to withdraw its admission and deny the
allegation that the discharge decision was discretionary.
Turning to the motion to reopen the record, I disagree
with my colleagues’ finding, in reliance on Section
102.48(d)(1) of the Board’s Rules and Regulations, that
admitting the proffered evidence would have no impact
on the outcome of this case. If admitted, evidence that
Senior Contract Specialist Briggs has demanded that the
officers be removed pursuant to PWS Section 6.4.4 for
“failing to devote full time and attention to assigned du-
ties” would support the Respondent’s steadfastly held
position that the officers’ dereliction of duty compelled
their discharge under PWS Section 6.4.4. This evidence,
together with the withdrawal of the Respondent’s answer
as discussed above, might well cause the judge to recon-
sider his finding that the discharge decisions were discre-
tionary. See J. P. Stevens & Company, Inc., 246 NLRB
1164, 1165 (1979) (granting motions to reopen the rec-
ord to accept evidence concerning employer’s surveil-
lance of union supporters because the evidence, if credit-
ed, “might cause the Administrative Law Judge to recon-
sider” allegations the judge had dismissed).7 Moreover,

pointments the Supreme Court subsequently invalidated in NLRB v.
Noel Canning, 134 S.Ct. 2550 (2014). The Court’s decision in Noel
Canning nullified the Board’s decision in Alan Ritchey, which had the
effect of reinstating Fresno Bee as controlling precedent. Thus, when it
answered the complaint in the instant case, the Respondent reasonably
believed that the judge was compelled to dismiss the complaint regard-
less whether the Respondent exercised discretion when discharging the
security officers (and the Respondent’s posthearing brief to the judge
relied heavily on Fresno Bee). A Board majority subsequently reinstat-
ed the holding of Alan Ritchey in Total Security Management Illinois 1,
LLC, 364 NLRB No. 106 (2016), but Total Security Management is-
sued on August 26, 2016—after the complaint issued in the instant case
(September 29, 2015), and also after the hearing (December 10, 2015),
and the issuance of the judge’s decision (January 21, 2016). Moreover,
the Board’s decision in Total Security Management applies prospec-
tively only and therefore does not apply in this case. 364 NLRB No.
106, slip op. at 11–12. (I dissented from the majority’s decision in
Total Security Management, see id., slip op. at 17–41, and I adhere to
my dissent.)
6 The General Counsel amended the complaint at the hearing to add
this allegation.
7 I disagree with my colleagues that the Respondent’s motion to reo-
pen the record must be denied on the basis that the evidence it seeks to
introduce did not exist at the time of the hearing. Under Sec.
SECURITY WALLS, INC. 11
the Respondent represents that on remand, it would in-
troduce evidence that accounts for the belatedness of
Briggs’ demand—namely, that no IRS official with final
authority to demand the officers’ removal from the con-
tract was aware of their dereliction of duty at the time
they were discharged on April 24, 2015.8 Consistent
with the mandate of Section 102.21 of the Board’s Rules
and Regulations that “[t]he rules and regulations . . . shall
be liberally construed to effectuate the purposes and pro-
visions of the Act,” I believe it would effectuate the pur-
poses of the Act to allow the Respondent to adduce the
proffered evidence, which was unavailable at the time of
the hearing and which might have a substantial impact on
the result of this proceeding.
2. The Unilateral Change Allegation. I disagree with
the judge’s finding that the Respondent’s discharge of
Marinez, Schneider, and Klabunde in reliance on Section
6.4.4 of the PWS constituted an unlawful unilateral
change in the Respondent’s progressive discipline policy.
The PWS requires the Respondent to “ensure that [its]

102.48(d)(1) of the Board’s Rules and Regulations, one of the grounds
for granting a motion to reopen the record is that the evidence sought to
be introduced “has become available only since the close of the hear-
ing,” and this may include evidence regarding posthearing events.
Sec. 10(c) of the Act states: “No order of the Board shall require the
reinstatement of any individual as an employee . . . or the payment to
him of any backpay, if such individual was suspended or discharged for
cause.” As the judge recognized, PWS Sec. 6.4.4 provides that “failing
to devote full time and attention to assigned duties” constitutes “cause
for immediate removal,” and the evidence proffered by the Respondent
indicates that the responsible IRS official—Senior Contract Specialist
Briggs—has required the Respondent to remove Marinez, Schneider
and Klabunde based on this provision. Therefore, apart from the poten-
tial relevance of this evidence to the question of liability, this evidence
would establish that Marinez, Schneider and Klabunde were discharged
“for cause.” Therefore, Sec. 10(c) of the Act would preclude the Board
from ordering backpay and reinstatement.
8 In an email sent on April 23, 2015, COR Sears acknowledged that
the officers’ dereliction of duty constituted a dischargeable offense, and
Sears further stated: “If individual guards do not have the character and
self-discipline to work at a federal installation and comply with the
responsibilities associated, then they will need to be removed.” R. Exh.
9. Sears did not, however, demand the officers be removed from per-
forming work on the contract. The Respondent seeks to introduce
evidence, on remand, that Sears was not a final decision-maker regard-
ing contract employees’ suitability to perform work on the contract, and
that Sears failed to report the officers’ misconduct to his superiors,
including Briggs. Such evidence is clearly material to this case, and the
Respondent should be given an opportunity to introduce it. Moreover,
the PWS does not, on its face, contradict the Respondent’s contention
that Sears was not a final decision-maker in this regard. Although PWS
Sec. 1.6.33 and 6.4.3 appear to grant the COR authority to require an
officer’s removal, language immediately following Sec. 1.6.33 appears
to reserve that authority solely to the CO. In addition, IRS project
manager Carpenter testified that Sears’ “job involves reporting to the
Contracting Officer . . . on [the Respondent’s] adherence to the PWS.”
In these circumstances, it is particularly appropriate that the Respond-
ent have an opportunity to introduce evidence regarding the scope and
limits of COR Sears’ authority.
employees conform to acceptable standards of conduct”
(Sections 1.6.32.4 & 6.4.4), and the failure of Marinez,
Schneider, and Klabunde “to devote full time and atten-
tion to assigned duties” constitutes “cause for [their] im-
mediate removal from performing on the contract” under
the PWS (Sections 1.6.32.4 & 1.6.32.4.22; Sections 6.4.4
& 6.4.4.21). In my view, the judge erroneously found
that PWS Section 6.4.4 was superseded by the Respond-
ent’s progressive discipline policy, which contained no
comparable language. As the judge found, the progres-
sive discipline policy stated that it superseded “all other
policies concerning this subject” (emphasis added).
However, this language could not supersede Section
6.4.4 in the PWS because the PWS was not a “policy”
promulgated by the Respondent. Rather, as stated in the
PWS, it was “a non-personal services contract” (empha-
sis added), entered into between the IRS and the Re-
spondent, which governed the entire arrangement making
the Respondent responsible for providing “armed securi-
ty guard services” at the secure government facility, and
which made “failing to devote full time and attention to
assigned duties” grounds for removing a security of-
ficer.9 In short, the record fails to support the judge’s
finding that the contract between the IRS and the Re-
spondent (including Section 6.4.4) was superseded by the
Respondent’s progressive discipline policy. This renders
erroneous the judge’s conclusion that the Respondent’s
application of PWS Section 6.4.4 constituted an unlawful
unilateral change in the Respondent’s progressive disci-
pline policy.
3. The Post-Discharge Refusal-to-Bargain Allegation.
For two reasons, I believe my colleagues err in affirming
the judge’s finding that the Respondent violated Section
8(a)(5) by refusing to bargain with the Union after it dis-
charged the security officers.
First, the judge’s finding violates the Respondent’s due
process rights. “‘To satisfy the requirements of due pro-
cess, an administrative agency must give the party
charged a clear statement of the theory on which the
agency will proceed with the case.’”10 Typically, appro-
priate notice is furnished by the allegations set forth in
the complaint.11 The Board will also consider any repre-
sentations made by the General Counsel on a timely ba-

9 See PWS Sec. 1.0: “GENERAL: This is a non-personal services
contract to provide armed security guard services.”
10 Lamar Advertising of Hartford, 343 NLRB 261, 265 (2004) (quot-
ing Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir.
1992)); see also KenMor Electric Co., Inc., 355 NLRB 1024, 1029
(2010) (“Due process requires that a respondent have notice of the
allegations against it so that it may present an appropriate defense.”),
enf. denied sub nom. Independent Electrical Contractors of Houston,
Inc. v. NLRB, 720 F.3d 543 (5th Cir. 2013).
11 KenMor Electric, supra.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sis during the course of litigation concerning the theory
of the alleged violation.12 However, the mere “presence
of evidence in the record to support a charge unstated in
a complaint or any amendment thereto does not mean the
party against whom the charge is made had notice that
the issue was being litigated.”13
The requirements of procedural due process were not
satisfied here. The complaint alleges that the Respond-
ent discharged the three guards “without prior notice to
the Union and without affording the Union an opportuni-
ty to bargain” (emphasis added). In other words, the
complaint alleged a failure to engage in pre-discharge
bargaining.14 The General Counsel could have also al-
leged, in the alternative, that the Respondent failed to
engage in post-discharge bargaining. The complaint
does not so allege, and at no time during the hearing or in
its posthearing brief to the judge did the General Counsel
advance this alternative theory of violation. Moreover, at
no time did the General Counsel amend the complaint to
add such an allegation, and this fact is the more telling in
that the General Counsel did amend the complaint to add

12 See Ozburn-Hessey Logistics, LLC, 362 NLRB No. 180, slip op.
at 4 (2015); Iron Workers Local 118 (Pittsburgh Des Moines Steel),
257 NLRB 564, 565–566 (1981), enfd. 720 F.2d 1031 (9th Cir. 1983).
13 Conair Corp. v. NLRB, 721 F.2d 1355, 1372 (D.C. Cir. 1983); see
also NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542, 547 (7th Cir. 1987)
(“[T]he simple presentation of evidence important to a . . . claim does
not satisfy the requirement that any claim at variance from the com-
plaint be ‘fully and fairly litigated’ in order for the Board to decide the
issue without transgressing . . . due process rights.”); Cioffe v. Morris,
676 F.2d 539, 542 (11th Cir. 1982) (“[T]he introduction of evidence
relevant to an issue already in the case may not be used to show consent
to trial of a new issue absent a clear indication that the party who intro-
duced the evidence was attempting to raise a new issue” (internal quo-
tations omitted).).
14 In another case involving the Respondent, my colleagues and I
found identical complaint language alleged a failure to engage in pre-
discharge bargaining, and we dismissed the allegation on the basis that
Alan Ritchey, supra, had been nullified by the Supreme Court’s deci-
sion in Noel Canning, supra, and the Board’s decision in Total Security
Management, supra, applies prospectively only. See Security Walls,
LLC, 365 NLRB No. 52 (2017); see also supra fn. 6. In case there was
any room to doubt the theory of the complaint, the General Counsel’s
attorney removed all doubt in his opening statement at the hearing.
Counsel stated:
Your Honor, this case is about Respondent’s failure to bar-
gain over the suspension and subsequent termination of three em-
ployees, Chris Marinez, Jason Schneider, and John Klabunde.
. . . . . . . . .
Under the principles of Alan Ritchey, such actions were
unlawful and it is the position of the General Counsel that
Alan Ritchey was soundly reason[ed] and should be adopted.
(Tr. 8–9) (emphasis added). Similarly, in his posthearing brief to the judge,
the General Counsel’s attorney urged the judge to adopt the rationale of
Alan Ritchey to find that the Respondent violated Sec. 8(a)(5) by failing to
bargain prior to the suspensions and discharges. (GC’s posthearing brief at
12–14.)
a different allegation: that the Respondent unilaterally
changed its progressive discipline policy in violation of
Section 8(a)(5). The absence of a complaint allegation—
or of full litigation of an issue closely connected to the
subject matter of the complaint15—infringes on a re-
spondent’s due process rights under any circumstances;
but given that the General Counsel did amend the com-
plaint to add one unfair labor practice allegation, the Re-
spondent was all the more entitled to assume that it was
not at risk of being found liable for having committed an
unalleged unfair labor practice. This denial of due pro-
cess in itself warrants reversal of the judge’s finding.
Moreover, even if the merits of the judge’s finding are
reached, I believe the record contradicts the judge’s find-
ing that the Respondent unlawfully refused to engage in
post-discharge bargaining upon request regarding the
discharges of Marinez, Schneider and Klabunde.16 As

15 Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990). A purported failure to engage in post-
discharge bargaining is not closely connected to an alleged failure to
engage in pre-discharge bargaining. But even if they were closely
connected, the issue of post-discharge bargaining was not fully and
fairly litigated at the hearing. Citing Piggly Wiggly Midwest, LLC, 357
NLRB 2344 (2012), my colleagues say that the post-discharge-
bargaining issue was fully litigated on the basis that the Respondent
purportedly would not have proffered additional evidence had the com-
plaint been worded differently. But in the same case, the Board empha-
sized that “[i]t is the opportunity to present argument under the new
theory of violation, which must be supplied.” Id. at 2345 (emphasis
added; alterations in original; internal quotations omitted); see also
Champion International Corp., 339 NLRB 672, 673 (2003) (“It is
axiomatic that a respondent cannot fully and fairly litigate a matter
unless it knows what the accusation is.”); Buonadonna Shoprite, LLC,
356 NLRB 857, 858 (2011) (“Although a judge may in appropriate
circumstances find a violation not alleged in a complaint, the judge
should not decide an issue that the judge alone has injected into the
hearing, especially where . . . the parties were never advised to litigate
the issue.”) (internal quotation omitted). Because the judge found an
unalleged failure to engage in post-discharge bargaining sua sponte, the
Respondent never had an opportunity to present argument to the judge
under this new theory of violation.
16 As I recognized in my partial dissenting opinion in Total Security
Management, supra, 364 NLRB No. 106, slip op. at 18 (Member
Miscimarra, concurring in part and dissenting in part), employers have
an obligation under Sec. 8(a)(5) to engage in bargaining upon request
regarding disciplinary standards and procedures. See also NLRB v.
Borg-Warner Corp., 356 U.S. 342, 349 (1958) (regarding mandatory
subjects, the employer and union, upon request, have an “obligation . . .
to bargain with each other in good faith,” although “neither party is
legally obligated to yield”); Fresno Bee, supra, 337 NLRB at 1187
(“Respondent has an obligation to bargain with the Union, up-
on request, concerning the discharges, discipline, or reinstatement of its
employees.”), overruled on other grounds by Total Security Manage-
ment, supra.
Because the record contradicts the judge’s finding that the Union
here requested bargaining regarding the discharges of Marinez, Schnei-
der and Klabunde, I do not reach or pass on the extent to which Re-
spondent was required to engage in post-discharge bargaining had it
been requested by the Union.
SECURITY WALLS, INC. 13
noted previously, the judge found that the May 3, 2015
email from Chief Union Steward Orlando Marquez to the
Respondent’s corporate counsel, Ed Holt, “may not con-
stitute a formal demand for bargaining,” but the judge
nonetheless found that it was “sufficient to invoke Re-
spondent’s obligations to bargain,” and my colleagues
also find that the Union requested bargaining. I believe
this finding is contrary to existing law. In the May 3
email, as described by the judge, Union representative
Marquez demanded “reinstatement and a make-whole
remedy for the 3 officers” and “stated that if Security
Walls did not respond to this demand, the Union would
file unfair labor practice charges with the Board.” See
also GC Ex. 4 (same). Conspicuously absent from the
May 3 email was any request to engage in bargaining
regarding the discharges, nor did the Union request bar-
gaining in any of its other communications with the Re-
spondent related to the discharges.17 Existing Board law

17 My colleagues find that the Union “adequately communicated its
desire to bargain,” but they point to no communication in which the
Union requested bargaining, and the record contains none. Rather, the
record shows the following. On April 19, 2015, the Union requested
information regarding the suspensions. On April 23, the Union filed a
grievance concerning the suspensions, in which it demanded that the
officers be reinstated immediately with backpay (emphasis in Union’s
grievance). To state the obvious, since bargaining takes time, a demand
for the officers’ immediate reinstatement cannot be reasonably con-
strued as a request to bargain. On April 29, the Respondent answered
the grievance, attaching by way of detailed explanation, the investiga-
tive reports completed by the Respondent’s IRS project manager, Scott
Carpenter. The Union followed up by email dated May 1, and the
Respondent answered that same day. On May 3, the Union responded
with a series of demands—including, once again, that the officers be
reinstated and made whole “immediately”—but in neither this re-
sponse, its prior communications, nor subsequently did the Union ever
request bargaining.
My colleagues say that the Respondent “effectively closed any ave-
nue of communication” by stating in its April 29 answer to the griev-
ance that “[t]his is not an offer to bargain.” This does not change the
fact that the Union never requested bargaining. It was the Union’s duty
to request bargaining, not the Respondent’s to offer to bargain in the
absence of a Union request. Moreover, the Union apparently did not
regard the Respondent’s April 29 answer as closing off communication,
since the Union responded on May 3—still without requesting bargain-
ing.
My colleagues cite Richmond, Division of Pak-Well, 206 NLRB 260
(1973), and several other cases for the proposition that a union’s re-
quest for information is effectively a request to bargain. Those cases
are clearly distinguishable. Each was a test-of-certification case, i.e., a
case in which the employer violated Sec. 8(a)(5) by refusing to bargain
with a newly certified union in order to appeal the Board’s decision in
the underlying representation case to a court of appeals. In that context,
the Board has deemed a request for information self-evidently relevant
to negotiations for an initial collective-bargaining agreement as a re-
quest to bargain, even if bargaining was not explicitly requested in so
many words. See Richmond, Division of Pak-Well, 206 NLRB at 261
(finding that union requested bargaining when it sent employer a letter
stating: “Prior to meeting with you for the purpose of negotiating an
agreement, the Union is requesting the following information: A list of
makes it clear that a Union’s objections, protests, and
threats to file a Board charge are not sufficient under
Section 8(a)(5) to constitute a request for bargaining.18

all employees[,] [s]eniority dates . . . [r]ate of pay . . . [l]ist of all classi-
fications. . . . As soon as we receive this information and have a chance
to digest it, I will contact you for the purpose of beginning negotia-
tions.”) (alterations in original). Here, in contrast, nothing in the Un-
ion’s communications with the Respondent indicated a desire to bar-
gain. To the contrary, in both its April 23 grievance and its May 3
email, the Union demanded that the three officers be reinstated imme-
diately. As noted above, this was a demand that could not reasonably
be understood as a request to bargain.
18 Trucking Water Air Corp., 276 NLRB 1401 (1985); Sewanee Coal
Operators Assn., 167 NLRB 172 (1967); and Roberts Electric Co., 227
NLRB 1312 (1977), upon which my colleagues rely, are not to the
contrary. In Trucking Water Air, the union president (Schueler) called
the employer’s president (Pace) after hearing that the company, whose
employees the union formerly represented, was back in business.
Schueler testified, “I asked Mr. Pace that I wanted to sit down with him
and I wanted to talk about the situation. . . . I said I’d like to sit down
with you right now and he said no.” 276 NLRB at 1406. The judge
found that “Schueler’s request that Pace ‘sit down’ with him to discuss
‘the situation’ [met] the criteria” for a request to bargain. Id. at 1407.
The judge then added the following dicta: “Were there any further
doubt of the meaning of Schueler’s statement to Pace, this doubt was
eliminated shortly thereafter when the Union filed the unfair labor
practice charges which led to the instant complaint.” Id. Similarly, in
Sewanee Coal Operators Assn., supra, the union sent a letter to the
respondents stating that it “desire[d] to meet at a mutually agreed time
and place to negotiate a contract,” 167 NLRB at 176, and the Board
found that the subsequent filing of refusal-to-bargain charges was a
“renewal” of the union’s request to bargain, id. at 172 fn. 3. Again, in
Roberts Electric, supra, a newly certified union sent letters to the re-
spondents requesting bargaining, and the judge found that the union’s
subsequent filing of charges renewed the bargaining request. 227
NLRB at 1319. Thus, in all of these cases, the union requested bargain-
ing prior to and separate from the subsequent filing of unfair labor
practice charges; and while the Board found that charge filing may
renew a bargaining request previously made, nothing in these cases
suggests that the filing of a charge may substitute for a bargaining
request that had never been made. Nevertheless, my colleagues appar-
ently view these cases as authority for the proposition that an unfair
labor practice charge effectively converts a prior union demand for
reinstatement and backpay into a request for bargaining. This reading
goes far beyond these cases and directly contradicts the Board’s long-
held position that filing a charge does not make up for a union’s failure
to clearly indicate a desire to bargain. The Board had never cited
Trucking Water Air for this proposition until a panel majority, over my
dissent, did so in Ohio Edison Co., 362 NLRB No. 88, slip op. at 13
(2015). The Court of Appeals for the Sixth Circuit rejected the Board
majority’s decision in Ohio Edison. See The Ohio Edison Company v.
NLRB, 847 F.3d 806 (6th Cir. 2017).
My colleagues say that the facts here present a stronger case for
finding that the Union demanded bargaining than those the Sixth Cir-
cuit found insufficient to constitute a bargaining demand in Ohio Edi-
son. To the contrary, the facts of the instant case put it even further
away from the line separating objections, protests, and threats from
requests to bargain than those at issue in Ohio Edison. There, Union
President Marshman responded to news that the employer planned to
make changes to an employee rewards program by telling the employ-
er’s director of labor relations, Eileen McNamara, that he would “have
to come to” the employer’s corporate headquarters, and he added that
he would also have to “file a Board charge.” Ohio Edison Co., 362
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
See, e.g., Associated Milk Producers, Inc., 300 NLRB
561, 564 (1990) (“It was incumbent on the Union to re-
quest bargaining—not merely to protest or file an unfair
labor practice charge.”); Clarkwood Corp., 233 NLRB
1172, 1172 (1977) (employer’s actions did not violate
Section 8(a)(5) where union officials “contacted
[r]espondent and protested its contemplated actions” but
did not “request [r]espondent to bargain”); The Empori-
um, 221 NLRB 1211, 1214 (1975) (employer did not fail
to bargain over subcontracting where the union asked the
employer not to contract out, complained that the con-
tractor refused to recognize the union, asked whether the
respondent would “do something about this” and “took
the position that . . . [r]espondent had violated its bar-
gaining agreement,” but where the union “never tested
[r]espondent’s willingness to satisfy its bargaining obli-
gation”); Medicenter, Mid-South Hospital, 221 NLRB
670, 679 (1975) (employer did not unlawfully fail to bar-
gain over polygraph testing where the union “showed no
inclination to do anything but object” and failed to re-
quest bargaining); American Buslines, Inc., 164 NLRB
1055, 1055–1056 (1967) (no unlawful refusal to bargain
about promotions that resulted in elimination of the bar-
gaining unit where the union, upon receiving notice of
the employer’s plans, “failed to prosecute its right to en-
gage in . . . discussion but contented itself by protesting
the contemplated promotions . . . and by subsequently
filing a refusal-to-bargain charge”). See generally Ohio
Edison Co., supra, 362 NLRB No. 88, slip op. at 4–6
(Member Miscimarra, concurring in part and dissenting
in part).19 Moreover, in my view, the Board should not

NLRB No. 88, slip op. at 3 (Member Miscimarra, concurring in part
and dissenting in part). McNamara then emailed her supervisor that
Marshman was “not happy,” and she added that she “was sure that he’s
serious about the charge and coming to” headquarters. Id., slip op. at 4
fn. 5. The majority in Ohio Edison found that Marshman had requested
bargaining, based in part on McNamara’s testimony that she understood
Marshman was serious about coming to headquarters, which the ma-
jority interpreted as indicating that Marshman wanted “to discuss the
matter with the [r]espondent’s CEO.” Id., slip op. at 1 (emphasis add-
ed). However, McNamara testified that she took Marshman to mean
that “he wanted to complain” to the employer’s CEO about the change.
Id., slip op. at 4–5 fn. 5 (Member Miscimarra, concurring in part and
dissenting in part) (emphasis in Ohio Edison). But although Marshman
never requested bargaining, he did at least signal a desire to meet the
employer’s CEO face to face. Here, in contrast, union agent Marquez
issued a list of demands, and the only meeting he proposed was one
between the Union and “representatives of the National Labor Rela-
tions Board . . . to discuss charges if Security Walls again fails to meet
the Local’s immediate demands.” GC Exh. 4. This is even further
removed from a request to bargain than Marshman’s statements in Ohio
Edison.
19 My colleagues cite two cases in support of the judge’s finding that
Marquez’s May 3, 2015 email was “sufficient to invoke Respondent’s
obligations to bargain.” In each of those cases, however, the union’s
response included some reference to dialogue, discussion, bargaining,
encourage years of litigation over an alleged refusal to
engage in bargaining, when the charging party, instead of
requesting bargaining, merely threatened the other side
with Board litigation.20
The Act imposes an obligation on parties to bargain
regarding mandatory subjects upon request, without re-
sorting to Board litigation, and it improperly inverts this
process for the Board to order bargaining—after poten-
tially years of litigation—that was never requested in the
first place. If we were to find violations in these circum-
stances, it would substantially deviate from the Board’s
role as a referee charged with overseeing the process of
collective bargaining that the parties themselves are re-
quired to initiate. See H. K. Porter Co. v. NLRB, 397
U.S. 99, 107–108 (1970) (“It is implicit in the entire
structure of the Act that the Board acts to oversee
and referee the process of collective bargaining, leaving
the results of the contest to the bargaining strength of the
parties.”). Since the record fails to establish that the Un-
ion requested bargaining over the discharges of the three
security officers, I believe the Respondent cannot rea-
sonably be found to have violated Section 8(a)(5) by
failing to engage in post-discharge bargaining with the
Union over the discharges.
For the foregoing reasons, I respectfully dissent.

or an exchange of ideas. Thus, in Armour & Co., 280 NLRB 824
(1986), the Board found a request to bargain where, in response to a
proposed change, the union stated that it “would like the opportunity to
discuss with your company your position.” Id. at 828 (emphasis in
original). In Indian River Memorial Hospital, Inc., 340 NLRB 467
(2003), the employer notified the union of a change in the work sched-
ule, and the union’s business agent responded that a schedule change
was “a mandatory subject of bargaining.” In response, the employer
stated, “We are willing to bargain collectively over those items cover-
ing wages, hours, and working conditions,” but “changing schedules . .
. is a management right.” Id. at 467. Thus, both the union’s statement
and the employer’s response referenced bargaining, and the Board
found a clear request to bargain. Id. at 468–469. Here, unlike these
cases relied upon by my colleagues, Marquez’s email was totally de-
void of any reference to discussion or bargaining.
20 My colleagues also say the arguments presented in this section are
not properly before the Board on the basis that the Respondent did not
advance them. Within the limits of due process—requiring that re-
spondents have “a clear statement of the theory on which the agency
will proceed with the case,” Lamar Advertising of Hartford, 343 NLRB
at 265—I believe that the Board should apply the applicable law to the
facts of each case, regardless of whether the parties have done so. See
Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991)
(stating that “the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law”).
SECURITY WALLS, INC. 15
Dated, Washington, D.C. June 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
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
violated 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 activi-
ties.
WE WILL NOT fail or refuse to bargain in good faith
with the International Union, Security, Police and Fire
Professionals of America (SPFPA) about disciplinary
matters.
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 unilateral change to our progres-
sive discipline policy.
WE WILL, within 14 days from the date of this Order,
offer Jason Schneider, John Klabunde and Christopher
Marinez full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Jason Schneider, John Klabunde and
Christopher Marinez whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest, plus reasonable
search-for-work and interim employment expenses.
WE WILL compensate Jason Schneider, John Klabunde
and Christopher Marinez for the adverse tax consequenc-
es, if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region 16
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years for each employee.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges of Jason Schneider, John Klabunde and Christo-
pher Marinez, and WE WILL, within 3 days thereafter,
notify Jason Schneider, John Klabunde and Christopher
Marinez in writing that this has been done and that the
discharges and suspension will not be used against them
in any way.
WE WILL, within 14 days from the date of this Order,
notify the Internal Revenue Service of this Order.
SECURITY WALLS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/16–CA–0152423 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Jonathan Elifson, Esq., for the General Counsel.
Milton D. Jones Esq. (Morrow, Georgia), for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Austin, Texas, on December 10, 2015. The Inter-
national Union, Security, Police and Fire Professionals of
America filed the charge on May 14, 2015. The General Coun-
sel issued the complaint on September 29, 2015.
Respondent, Security Walls, LLC, employs the security
guards at an Internal Revenue Service facility in Austin, Texas
under contract. On March 1, 2014, Respondent succeeded
another contractor, which had a collective-bargaining agree-
ment with the Union. Security Walls declined to adopt its pre-
decessor’s collective-bargaining agreement.
On September 1, 2015, a collective-bargaining agreement
between Respondent and the Union went into effect. However,
in April 2015, several months earlier, Respondent suspended
and discharged 3 security guards who were members of the
bargaining unit without giving the Union prior notice or offer-
ing it an opportunity to bargain over the discharges. The Gen-
eral Counsel alleges that Respondent violated Section 8(a)(5)
and (1) in doing so. The General Counsel relies in part on the
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rationale in Alan Ritchey, 359 NLRB 396 (2012), a decision
invalided by the Supreme Court due to the composition of the
Board at the time.
In the alternative, the General Counsel alleges that Respond-
ent violated Section 8(a)(5) and (1) by unilaterally disregarding
its generally progressive discipline policy.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited liability company based in Tennessee,
provides security and private investigation services. One of its
places of business is the IRS facility in Austin, Texas. During
the calendar year ending August 31, 2015, Respondent per-
formed services valued in excess of $50,000 outside of Texas.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent replaced the predecessor contractor at the IRS
facility on March 1, 2014. It declined to adopt its predecessor’s
collective-bargaining agreement with the Union. Contract ne-
gotiations took place on August 6, 2014, and a number of arti-
cles were tentatively agreed upon. One of those tentative
agreements concerned a grievance and arbitration procedure
(Art. XIV). Another tentative agreement concerned discharge
and discipline. However, a complete collective-bargaining
agreement did not become effective until September 1, 2015.
There is no evidence that the parties agreed to an interim griev-
ance procedure between August 2014, and September 2015.
The Incident of April 15, 2015
On April 15, 2015, security guard Jason Schneider relieved
guard John Klabunde for a break at about 2 p.m. at Klabunde’s
post by the visitor center for the facility (designated post B-1).
Both the relieving guard and the relieved guard must sign in
and out of a log book. Apparently Klabunde made an error in
signing out. While he and Schneider were attempting to correct
the error, a woman, who was not authorized to enter the facili-
ty, walked between the exit arm for cars leaving the facility and
a fence, and entered the facility without being detected by ei-
ther Schneider or Klabunde.
The next day Respondent suspended both guards.
The Incident of April 22, 2015
On April 22, 2015, guard Christopher Marinez, who normal-
ly worked at night, worked the day shift. At about 2 p.m. Re-
spondent moved Marinez to the B-1 post by the Visitor’s Cen-
ter. Marinez decided that his chair was too low to afford him a
clear view of the area for which he was responsible. While
Marinez adjusted his chair, a woman and a child, who were not
authorized to enter the facility, walked by his post undetected.
Respondent suspended Marinez the same day.
Despite the fact that there was no contractual grievance pro-
cedure in place, the Union’s Chief Steward, Orlando Marquez
filed a grievance on April 23, demanding reinstatement and
backpay for all three guards.
April 28, 2015 Meeting
On April 28, Schneider, Klabunde and Marinez were sum-
moned to a meeting with Site Supervisor Frederico Salazar.
Salazar handed the three guards some documents and told the
three that they had been terminated. Scott Carpenter, Respond-
ent’s project manager for the IRS contract, had investigated the
two incidents and prepared a report recommending the termina-
tion of the three guards. Carpenter’s report is most likely the
paperwork given the guards since there is no other documenta-
tion in this record pertaining to the terminations. Carpenter did
not attend the April 28 meeting. Chief Union Steward Orlando
Marquez was present at this meeting. There was no negotiation
about the discipline imposed.
Facts pertaining to the alleged unilateral change
On April 25, 2014, a year before the suspensions in this case,
Respondent adopted, unilaterally it appears, a disciplinary poli-
cy which applied to all Security Walls personnel on contract
TIRMS-14-C-0001. This is the contract that applies to the
guards working at the Austin IRS facility (GC Exh. 3; R. Exh.
8). This discipline policy states on its face that it supersedes all
other policies concerning discipline.
This policy provides generally for a progressive discipline
system. However, it specifies a number of violations for which
a guard may be terminated immediately upon a first offense.
These violations are: refusal to cooperate in an investigation,
sleeping on duty, sexual activities on the job, falsification, un-
lawful concealment, removal, mutilation, destruction of any
official document or record or concealment of material facts by
willful omission from official documents, records or state-
ments.
The incidents for which guards Schneider, Klabunde and
Marinez were fired, fit into none of categories for which a
guard could be fired immediately upon a first offense. In a
category entitled “violation of written rules, regulations or poli-
cy,” a violation resulting in a breach of security could result in
a 2-day suspension, or termination based on previous offenses.
There is no evidence that Schneider, Klabunde or Marinez had
any offenses prior to April 2015. Thus applying Respondent’s
disciplinary policy in effect in April 2015, they could not have
been terminated.
The Performance Work Statement
Respondent, however, contends that it was entitled to termi-
nate Schneider, Klabunde and Marinez pursuant to the Perfor-
mance Work Statement (PWS), Exh. R-1, which spells out its
obligations to the IRS. Security Walls contends this document
takes precedence over its disciplinary policy. However, the
PWS was posted at the IRS facility on March 1, 2014; thus the
disciplinary policy on its face supersedes it with regard to dis-
cipline. Respondent cites to the following sections of the PWS:
Section 6.4.4 (page 58): The contractor is also responsible for
ensuring that their employees conform to acceptable standards
SECURITY WALLS, INC. 17
of conduct. The following actions, behavior or conditions are
cause for immediate removal from performing on the con-
tract.
Section 6.4.4.2: Violations of Federal Management Regula-
tions, Subpart C, Conduct on Federal Property (41 CFR 102-
74) (see Section J, Exhibit 7).
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…
Failure to abide by the Performance Work Statement, can
under some circumstances, result in Security Walls losing its
contract with the IRS.
Email exchange between IRS and Security Walls
IRS’ representative monitoring Respondent’s performance
on this contract was John Sears. When he learned of the second
security breach within a week of the Visitor’s Center post by
Marinez, Sears exchanged emails with Scott Carpenter, Securi-
ty Walls’ project manager.
From: Sears John D.
Sent: Thursday, April 23, 2015 9:04 AM
To: Scott Carpenter
Subject: FW: Unauthorized Access
Good Morning Scott:
De-ja-vu. Hopefully this one will not get all the way to the
campus director. None the less, it was another security breach
but luckily control center was on top of it. I will review availa-
ble footage this morning on this and let you know what we see.
Fred had indicated that you would be in town tomorrow?
It was brought to my attention yesterday that moral (sic) has
taken a hit because of the Schneider and Klabunde suspensions.
Ultimately, I hope that SW will adopt an effective system of
discipline for these types of violations and deter them from
happening. But guards who commit a serious offenses (sic)
like carelessly permitting a security breach or falsifying daily
log reports to reflect patrols that were not being done, must
understand that those are fireable offense and warrant more
than a slap-on-the wrist “verbal counseling” or “written coun-
seling.” First offense or not!
Each month when I sign off on payment for services, I own
that responsibility and everything that goes with it. I cannot
accept substandard services and those associated with this con-
tract need to understand that. If individual guards do not have
the character and self-discipline to work at a federal installation
and comply with the responsibilities associated, then they will
need to be removed.
Hopefully we can make some significant progress when you
come out here tomorrow. Unfortunately, some of them have
just developed bad habits that are getting them into trouble.
From: Sears John D
Sent: Thursday, April 23, 2015 11:15 AM
To: Scott Carpenter
Subject: RE: Unauthorized Access
Scott, I just looked at footage from all available views.
Like the previous incident last week, it was a matter of the
breach occurring when he turned his back momentarily to ap-
parently adjust his chair. It was not a matter of careless behav-
ior, but officers working that post must be able to multitask and
recognize what’s going on around them.
Again, I hope SW can address this so that guards are paying
greater attention to details so we don’t miss these types of inci-
dents.
From: Scott Carpenter
Sent: Thursday, April 23, 2015 6:47 PM
To: Sears John D
Subject: RE: Unauthorized Access
Thank you, John.
While I am concerned with morale, I am much more con-
cerned with having officers who can perform the very basic
duty they have, protection of the facility. These are, as you
know, very serious violations on the standards of conduct and
post a huge risk to the facility and all personnel on site. I will
be there in the morning to review video of both incidents and
finalize our internal investigation. Unfortunately, these officers
neglected their most primary duty and we are very fortunate
that we did not have an angry, armed person gain access.
I look forward to meeting with you tomorrow morning.
Scott
From: Sears John D
Sent: Friday, April 24, 2015 8:17 AM
To: Scott Carpenter
From: RE: Unauthorized Access
I agree Scott. Look forward to seeing you today.
John
While it appears that Sears could have demanded that the
three guards be removed from the contract, there is no evidence
that he did so.
On April 28, Site Supervisor Salazar summoned the three
guards to a meeting and told them that they were terminated.
On April 29, 2015, the day after Respondent terminated
Schneider, Klabunde, and Marinez, Ed Holt, Corporate Counsel
at Security Walls sent the Union a letter titled “Response to
Grievance regarding Officer Marinez,” (Exh. R-11).
Holt discussed the investigative report of Project Manager
Scott Carpenter. Then he stated that Carpenter’s recommenda-
tion did not state a final action or outcome. However, Site
Supervisor Salazar had given the three officers papers signed
by Scott Carpenter on the previous day (possibly Carpenter’s
April 24 investigative report) and told them that they were fired
(Tr. 101–102). There are no other termination documents in
this record or any evidence that the termination decision was
made later than April 28.
Holt went on to say:
As identified in Mr. Carpenter’s recommendation, the alleged
violations of Officers Marinez, Klabunde and Schneider all
under the specifications of the PWS [Performance Work
Statement], and are outside the conduct defined in Security
Walls internal Disciplinary Action/Policy Statement as cited
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as the basis for the grievance. As such, the appropriate disci-
plinary action is neither specified in, nor controlled by com-
pany policy.
As any disciplinary action in this case is based upon the pro-
visions of the PWS, Officer Marinez has not been unjustly
discriminated against, nor have his rights been “grossly vio-
lated” as alleged in the grievance.
Based on the foregoing, Officers Marinez, Klabunde, and
Schneider shall remain on suspension pending a final decision
by Chief Manager Walls as to whether either of the officers
has committed a violation of the Standards of Conduct set out
in the PWS
Security Walls awaits a response in three calendar days.
This is not an offer to bargain. Nor is it an offer to invoke
the grievance procedure contained in the agreements tentatively
agreed to in August 2014.
Chief Union Steward Orlando Marquez emailed Holt on
May 3, demanding reinstatement and a make-whole remedy for
the three officers. Marquez stated that if Security Walls did not
respond to this demand, the Union would file unfair labor prac-
tice charges with the Board. Corporate Counsel Holt responded
to the Union by stating that Site Supervisor Salazar did not
have the authority to terminate the officers on April 28. How-
ever, there are no termination documents in this record apart
from those given to the officers by Salazar on that date. Securi-
ty Walls did not otherwise respond to the May 3 email and the
Union filed the initial charge in this matter on May 14.
Analysis
Respondent violated Section 8(a)(5) and (1) by failing to bar-
gain about the discharges of the 3 guards after the fact
I decline the General Counsel’s invitation to apply the ra-
tionale of the Alan Richey decision until the Board adopts that
rationale; I am bound by existing precedent. Moreover, even if
the Board were to reaffirm its holding in Alan Ritchey, it must
decide whether it will apply that rationale only prospectively,
as it did in the 2012 decision or retrospectively.1
However, even under existing Board precedent, Respondent
violated the Act. An employer has an obligation to bargain
with the Union, upon request, concerning disciplinary matters,
even if it has no obligation to notify and bargain to impasse
with the Union before imposing discipline, The Fresno Bee,
337 NLRB 1161, 1186–1187 (2002); Ryder Distribution Re-
sources, Inc., 302 NLRB 76, 90 (1991). This is certainly true
when, as in this case, its existing disciplinary policy did not
require termination, Sygma Network Corp., 317 NLRB 411,
417 (1995). An employer’s disciplinary system constitutes a
term of employment that is a mandatory subject of bargaining,
Toledo Blade Co., 343 NLRB 385, 387 (2004). The Union
filed a grievance of April 23, to which Respondent replied on
April 29, R. Exh. 11. The Union replied to Respondent’s letter
on May 3 demanding the reinstatement of Schneider, Klabunde,

1 For the same reason I will not address the General Counsel’s con-
tention that Respondent is obligated to pay for discriminatees’ expenses
while searching for work.
and Marinez.
While there was an exchange of emails between Respond-
ent’s Counsel Holt and Chief Steward Marquez after May 3,
Holt did not offer to bargain over the discharges or address the
issues raised in Marquez’s May 3 email. While the May 3
email may not constitute a formal demand for bargaining, it is
sufficient to invoke Respondent’s obligations to bargain. Thus,
Respondent refused to bargain after imposing discipline and
thus did not live up to its obligations under existing caselaw.
On this basis alone, I find that Respondent violated Section
8(a)(5) and (1).
Respondent, in its answer admitted that it exercised discre-
tion in terminating the three guards, but at the same time ap-
pears to be arguing that the discharges were made pursuant to
an established policy in the Performance Work Statement that
mandated their discharges. To the contrary, I find that Re-
spondent terminated these employees pursuant to a policy that
had not existed prior to April 2015, and therefore violated Sec-
tion 8(a)(5), Great Western Produce, Inc., 299 NLRB 1004,
1005 (1990), revd. on other grounds in Anheuser-Busch, Inc.,
351 NLRB 644 (2007).
Respondent violated the Act in unilaterally changing its
discipline and discharge policy
Respondent’s contention that it terminated the three guards
pursuant to a valid established policy, i.e., the Performance
Work Statement, is somewhat inconsistent with its admission
that it exercised discretion in doing so. Respondent violated
Section 8(a)(5) and (1) by unilaterally changing its discipline
policy by terminating three employees for a first offense not
contemplated by its existing progressive discipline policy.2
It is clear Respondent did not have any policy that mandated
the termination of a security guard on the first occasion that a
security breach occurred on his or her watch until April 2015.
Thus, this in fact was a unilateral change. The Performance
Work Statement does not mandate such discipline. It leaves it
up to the IRS contracting officer to decide whether to demand
the removal of an employee from the contract. It also allows
the contracting officer to require retraining, suspension or dis-
missal of any contract employee deemed carless in the perfor-
mance of his duties. Since neither John Sears, nor any other
IRS official, demanded the removal of the three officers from
the contract, or their termination, Respondent acting on its own,
unilaterally determined that the three officers’ conduct merited
termination in violation of Section 8(a)(5).
What is also clear is that the three guards would not have
been discharged if Respondent applied the progressive disci-
pline policy it adopted in April 2014. Respondent, at page 9 of
its brief, argues that this policy pertains only to ordinary mis-
conduct, not gross misconduct. This is simply incorrect. By
specifically mentioning offenses which are grounds for termi-
nation on a first offense, the policy clearly deals with “gross
misconduct.”
One quandary is that Respondent’s unilateral adoption of the

2 The General Counsel’s reliance on instances in which guards were
not disciplined for prior security breaches is misplaced. In none of
those instances was the breach undetected by the guard in question, as
was the case with Schneider, Klabunde, and Marinez.
SECURITY WALLS, INC. 19
progressive discipline policy may also have been a violation of
Section 8(a)(5). However, I do not see that as an impediment
in finding a violation for another unilateral change. The pro-
gressive discipline policy was adopted on April 25, 2014. Re-
spondent had bargaining obligations with regard to this Union
beginning on March 1, 2014, and appears to have neglected
these obligations in promulgating this policy.
On the other hand, the progressive discipline policy states on
its face that it supersedes all other policies concerning disci-
pline. Thus, by its terms the progressive discipline policy su-
persedes the Performance Work Statement, which was posted at
the IRS facility in Austin on March 1, 2014, with regard to
disciplinary matters. Moreover, regardless of whether or not
Security Walls could disregard its progressive disciplinary poli-
cy, it did not have a policy mandating the termination of its
guards for a first offense similar to those of Schneider, Klabun-
de and Marinez prior to April 2015. IRS’ representative Sears
was even unwilling to characterize their behavior as “careless”
in his April 23 email to Scott Carpenter.
The Union did not waive its bargaining rights by not pursuing
the grievance procedure set forth in the tentative agreements
of August 2014
Normally in collectively bargaining negotiations, tentative
agreements are not immediately binding on the parties, unless
they specifically agree that is the case. Otherwise, they become
operative only when a final collective-bargaining agreement is
reached, Stroehmann Bakeries, Inc., 289 NLRB 1523, 1524
(1988). Thus, the parties’ tentative agreement in August 2014,
regarding a grievance and arbitration process did not become
operative until September 1, 2015, months after the discharges
at issue in this case. Thus, contrary to Respondent’s conten-
tions, the tentative agreements of August 2014, have no bearing
on this case. There was no grievance procedure in place for the
Union to pursue. Moreover, Counsel Holt’s letter of April 29,
2015, presented the Union with a fait accompli. It indicated
that Respondent had no intention of rescinding or reducing the
discharges of the three guards under any circumstances.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(5) and (1) of the Act in re-
fusing and/or failing to bargain with the Union over the dis-
charges of Security Guards Schneider, Klabunde, and Marinez.
Respondent violated Section 8(a)(5) and (1) of the Act in
unilaterally changing its discipline policy in discharging Securi-
ty Guards Schneider, Klabunde, and Marinez for a first time
security breach.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, it is ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of
the Act. Specifically, by unilaterally changing its progressive
discipline policy in violation of Section 8(a)(5) and (1) of the
Act, Respondent shall rescind this unilateral change and restore
the status quo ante until such time as the parties are able to
resolve the discharges through the collective-bargaining pro-
cess.
Respondent is also ordered to reinstate officers Schneider,
Klabunde, and Marinez to their former positions, or if those
positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed. Further Respondent is order to make
these employees whole for any loss of earnings and other bene-
fits suffered as a result of Respondent’s unlawful conduct, with
interest, Heartland Human Services, 360 NLRB No. 101
(2014).
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
Respondent shall reimburse the discriminatees in amounts
equal to the difference in taxes owed upon receipt of a lump-
sum backpay award and taxes that would have been owed had
there been no discrimination. Respondent shall also take what-
ever steps are necessary to insure that the Social Security Ad-
ministration credits the discriminatees’ backpay to the proper
quarters on their Social Security earnings records.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Security Walls, LLC, Austin, Texas, its of-
ficers, agents, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good
faith with the International Union, Security, Police and Fire
Professionals of America (SPFPA) as the exclusive collective-
bargaining representative of all full-time and regular part-time
security officers employed by the company at the Internal Rev-
enue Service Center and affiliated buildings in Austin, County
of Travis, Texas.
(b) 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) Rescind the application of its new discipline and dis-
charge rule through the date of the parties’ collective-
bargaining agreement that went into effect of September 1,
2015.
(b) Offer unit employees Jason Schneider, John Klabunde,
and Christopher Marinez full reinstatement to their former posi-
tions, or if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Make Jason Schneider, John Klabunde, and Christopher
Marinez whole for any loss of earnings and other benefits suf-
fered as a result of the unlawful discipline, in the manner set
forth in the remedy section of the decision.
(d) Compensate Jason Schneider, John Klabunde, and Chris-

3 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.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
topher Marinez for any adverse tax consequences of receiving
their backpay in one lump sum, and file a report with the Social
Security Administration allocating the employees’ backpay
awards to the appropriate calendar quarters for each employee.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify Jason Schneider, John Kla-
bunde, and Christopher Marinez in writing that this has been
done and that the discharges will not be used against them in
any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its
Austin, Texas. Facilities, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’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. In addition to physical posting of paper
notices, the 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. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 employees employed by the Respondent at any time
since April 28, 2015.
(f) 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., January 21, 2016.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 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 fail or refuse to bargain in good faith with the
International Union, Security, Police and Fire Professionals of
America (SPFPA) about disciplinary matters.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Jason Schneider, John Klabunde, and Christopher Marinez full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL make Jason Schneider, John Klabunde, and Chris-
topher Marinez whole for any loss of earnings and other bene-
fits resulting from their discharges, less any net interim earn-
ings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges Jason
Schneider, John Klabunde, and Christopher Marinez.
WE WILL, within 3 days thereafter, notify Jason Schneider,
John Klabunde, and Christopher Marinez in writing that this
has been done and that the discharges and suspension will not
be used against them in any way.
SECURITY WALLS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16–CA–152423 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.