Security Walls, LLC

National Labor Relations Board - Board Decisions

Apr 6, 2017

365 NLRB No. 52 (N.L.R.B. 2017)

365 NLRB No. 52
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, LLC and International Union Securi-
ty Police Fire Professionals of America (SPFPA)
and its Local No. 554. Case 13–CA–114946
April 6, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
This matter comes before the Board upon the joint mo-
tion of Respondent Security Walls, LLC, Charging Party
International Union Security Police Fire Professionals of
America (SPFPA) and its Local 554, and the General
Counsel to waive a hearing and decision by an adminis-
trative law judge and to transfer the proceedings to the
Board for a decision based on a jointly stipulated record.
The question presented is whether the Respondent vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by disciplining a bargaining unit employee
without first giving the Union an opportunity to bargain.
For the reasons discussed below, we shall grant the par-
ties’ joint motion, and we shall dismiss the complaint.
In their joint motion, the parties agreed that the joint
stipulation of facts, statement of issues presented, each
party’s statement of position, and the attached exhibits,
including the charge, the complaint as amended, the an-
swer to the amended complaint, and the Board’s earlier
decision in Security Walls, LLC, 361 NLRB No. 29, slip
op. (2014), constitute the entire record in this case.
We grant the parties’ joint motion to transfer the pro-
ceedings to the Board, and we approve their joint stipula-
tion and attached exhibits. On the basis of the stipulated
record and statements of position, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an
office and place of business in Knoxville, Tennessee, has
been engaged in providing security services for Argonne
National Laboratory located in Argonne, Illinois, hereaf-
ter referred to as Respondent’s facility. In conducting its
operations during the 12-month period ending February
18, 2015 (the date of the General Counsel’s second
amended complaint), the Respondent performed services
for entities located outside the State of Tennessee valued
in excess of $50,000. At all material times, the Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. At all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. STIPULATED FACTS
On about December 12, 2012, the Respondent recog-
nized the Union as the exclusive collective-bargaining
representative of a unit of guards and sergeants perform-
ing security duties at the Respondent’s facility. On Feb-
ruary 12, 2014, the General Counsel, through the Re-
gional Director for Region 13, issued a complaint, which
he amended on March 12, 2014, alleging in relevant part
that since on or about August 18, 2013, and prior to the
parties reaching final agreement on a first contract for
this unit, the Respondent refused to bargain with the Un-
ion before suspending and later discharging employee
Matthew Terres, in violation of Section 8(a)(5) and (1) of
the Act. These allegations were based on the Board’s
decision in Alan Ritchey, Inc., 359 NLRB 396 (2012),
which held that an employer is obligated to provide no-
tice and an opportunity to bargain before imposing cer-
tain types of discipline, including discharge, on employ-
ees represented by a union but not yet covered by a col-
lective-bargaining agreement. In the joint stipulation,
while contesting liability, the Respondent admitted that it
discharged Terres without bargaining with the Union.
Discussion
At the time of the Decision and Order in Alan Ritchey,
the composition of the Board included two persons
whose appointments to the Board had been challenged as
constitutionally infirm. On June 26, 2014, the United
States Supreme Court issued its decision in NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014), holding that the chal-
lenged appointments to the Board were not valid. In
light of Noel Canning, the Board recently examined de
novo the pre-imposition notice and opportunity-to-
bargain requirements first announced in Alan Ritchey.
See Total Security Management, Inc., 364 NLRB No.
106 (2016). The Board reaffirmed those requirements,
but found that applying the rule to cases arising before
the issuance of Total Security would constitute manifest
injustice. 364 NLRB No. 106, slip op. at 11–12.
There is no dispute that this case was pending at the
time Total Security was decided. Accordingly, given
Total Security’s prospective-only application, we find
that the Respondent did not violate Section 8(a)(5) and
(1) as alleged by disciplining Terres without first giving
the Union notice and an opportunity to bargain. For that
reason, we shall dismiss the complaint. See Paragon
Systems, Inc., 364 NLRB No. 134 (2016).1

1 Acting Chairman Miscimarra disagrees with the decision in Total
Security for the reasons discussed in his separate opinion in that case
(Total Security, slip op. at 17–42 (then Member Miscimarra, concurring
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The complaint is dismissed.
Dated, Washington, D.C. April 6, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman

in part and dissenting in part)), but agrees with his colleagues that the
Respondent’s relevant conduct here did not violate the Act under that
decision.
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD