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Total Security Management Illinois 1, LLC, 364 NLRB No NOTICE: This opinion is subject to formal revision before publication in the will apply today’s holding prospectively and dismiss the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. allegations in this case, but we will provide guidance 20570, of any typographical or other formal errors so that corrections can regarding the remedies that would be appropriate in later be included in the bound volumes. cases. Total Security Management Illinois 1, LLC and In- Background ternational Union Security Police Fire Profes- sionals of America (SPFPA). Case 13–CA– The complaint alleges that the Respondent, a provider 108215 of security planning and security services, violated Sec- tion 8(a)(5) and (1) of the Act by discharging three unit August 26, 2016 employees without prior notice to or bargaining with DECISION AND ORDER International Union, Security, Police and Fire Profes- BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, sionals of America (the Union or SPFPA), which repre- HIROZAWA, AND MCFERRAN sents the employees.2 The parties submitted, and the The issue in this case is whether the Respondent acted judge accepted, a stipulated record that establishes that unlawfully when it discharged three employees without the relevant facts are undisputed and the issue presented first giving the Union notice and an opportunity to bar- to us is the legal question whether the Respondent’s gain about the discharges.1 The judge found the dis- acknowledged failure to bargain with the Union before charges unlawful, relying on Alan Ritchey, Inc., 359 discharging the three employees was unlawful. NLRB 396 (2012), which held that an employer is obli- Analysis gated to provide notice and an opportunity to bargain The primary question before us is whether an employ- before imposing certain types of discipline, including er has a duty to bargain before disciplining individual discharge, on employees represented by a union but not employees, when the employer does not alter broad, yet covered by a collective-bargaining agreement. At the preexisting standards of conduct but exercises discretion time of the Decision and Order in Alan Ritchey, however, over whether and how to discipline individuals. The the composition of the Board included two persons issue arose in this case, as it typically will, after the em- whose appointments to the Board had been challenged as ployees voted to be represented by a union, but before constitutionally infirm. On June, 26, 2014, the United the employer and union had entered into a complete col- States Supreme Court issued its decision in NLRB v. Noel lective-bargaining agreement or other agreement govern- Canning, 134 S.Ct. 2550 (2014), holding that the chal- ing discipline. lenged appointments to the Board were not valid. The Board has long held, in a variety of other contexts, In light of the Supreme Court’s decision in Noel Can- that once employees choose to be represented, an em- ning, we reexamine de novo whether an employer has a ployer may not continue to act unilaterally with respect statutory obligation to bargain before imposing discre- to terms and conditions of employment—even where it tionary discipline on unit employees, when a union has has previously done so routinely or at regularly sched- been certified or lawfully recognized as the employees’ uled intervals. If the employer has exercised and contin- representative but has not yet entered into a collective- ues to exercise discretion in regard to the unilateral bargaining agreement with the employer. Having con- change at issue, e.g., the amount of an annual wage in- sidered the issue, we again hold that, like other terms and crease, it must first bargain with the union over the dis- conditions of employment, discretionary discipline is a cretionary aspect. See, e.g., Oneita Knitting Mills, 205 mandatory subject of bargaining and that employers may NLRB 500 (1973). Other than in Alan Ritchey, supra, not unilaterally impose serious discipline, as defined be- the Board has never clearly and adequately explained low. Nevertheless, based on the unique nature of disci- how (and to what extent) this established doctrine applies pline and the practical needs of employers, the bargain- to the discipline of individual employees. We now con- ing obligation we impose is more limited than that appli- clude that an employer must provide its employees’ bar- cable to other terms and conditions of employment. We gaining representative notice and the opportunity to bar- gain before exercising its discretion to impose certain 1 On May 9, 2014, Administrative Law Judge Arthur J. Amchan is- discipline on individual employees, absent an agreement sued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the with the union providing for a process, such as a griev- Respondent filed a reply brief. ance-arbitration system, to address such disputes. Never- The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, 2 Other violations that were alleged in the complaint have been sev- findings, and conclusions only to the extent consistent with this Deci- ered and resolved. sion and Order. 364 NLRB No. 106 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD theless, because we apply this rule prospectively only, minent danger to the Respondent’s business we find, contrary to the judge, that the Respondent did or personnel or that any of them engaged in not violate Section 8(a)(5) and (1) when it refused to unlawful conduct, posed a significant risk of bargain with the Union over certain disciplinary actions exposing the Respondent to legal liability for here. the employee’s conduct, or threatened safety, A. Facts health, or security in or outside the work- place. The parties stipulated to the following facts: ! “[T]he issue presented is Respondent’s chal- ! The Union was certified as the exclusive rep- lenge to the legal validity of Alan Ritchey, resentative of a bargaining unit that included Inc., 359 NLRB No. 40 (2012) and the au- security guards Jason Mack, Winston Jen- thority of the Acting General Counsel and the nings, and Nequan Smith on August 21, 2012. Regional Director to issue the Consolidated ! The Respondent discharged Mack, Jennings, Complaint in this case.”5 and Smith on March 12, 2013.3 ! The Respondent exercised discretion in dis- 5 We reject the Respondent’s challenges to the authority of the Re- charging each of the employees; it did not ap- gional Director and the Acting General Counsel to act in this case. The ply any uniform policy or practice regarding Respondent argues that Regional Director Peter Ohr was invalidly discipline for their asserted misconduct.4 appointed by a Board that included recess appointee Craig Becker; however, the Supreme Court’s Noel Canning decision, above, estab- ! The Respondent did not provide the Union lished that Member Becker’s recess appointment to the Board was notice or an opportunity to bargain over any valid. See also Mathew Enterprise d/b/a Stevens Creek Chrysler Jeep of the discharges before implementing them. Dodge v. NLRB, 771 F.3d 812 (D.C. Cir. 2014); Gestamp South Caro- lina, LLC v. NLRB, 769 F.3d 254 (4th Cir. 2014). Thus, the Regional ! At the time of the March 12 discharges, the Director was appointed by a properly constituted Board. Respondent and the Union had not reached an Regarding the Acting General Counsel’s authority, in its answer to initial collective-bargaining agreement or an- the complaint, the Respondent raised the following affirmative defense: other binding agreement governing discipline. ! The Respondent did not have a reasonable, The Complaint should be dismissed because the Acting General Counsel was not properly appointed and therefore lacks statutory au- good-faith belief, at the time of the discharg- thority under the National Labor Relations Act to bring the Complaint es, that any of the three employees’ continued or to delegate such authority to the Regional Director. presence on the job presented a serious, im- For the reasons set forth below, we find no merit in the Respond- 3 Dates are in 2013 unless otherwise stated. ent’s argument that the Acting General Counsel was improperly or 4 According to the stipulation, the Respondent asserts that it dis- unlawfully “appointed.” At the outset, we note that under the Federal charged Mack for abandoning his post prior to completing his shift and Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., a person is falsifying company documents; Jennings, for refusing to cooperate with not “appointed” to serve in an acting capacity in a vacant office that the Respondent’s investigation of Mack, making misrepresentations to otherwise would be filled by appointment by the President, by and with a supervisor, being insubordinate, and failing to report a coworker’s the advice and consent of the Senate. Rather, either the first assistant to violation of company policy; and Smith, for using profane and indecent the vacant office performs the functions and duties of the office in an language toward a supervisor and causing a disturbance at a client site. acting capacity by operation of law pursuant to 5 U.S.C. § 3345(a)(1), The record contains no other information about the asserted misconduct or the President directs another person to perform the functions and underlying the discharges. duties of the vacant office in an acting capacity pursuant to 5 U.S.C. § The stipulation states that “[i]n the circumstances presented in this 3345(a)(2) or (3). case, Respondent did not adhere to any uniform policy or practice with On June 18, 2010, the President directed Lafe Solomon, then- respect to issuing discipline regarding [the employees’ asserted mis- Director of the NLRB’s Office of Representation Appeals, to serve as conduct].” This language is ambiguous as to whether the Respondent Acting General Counsel pursuant to subsection (a)(3) – the senior adhered to no disciplinary policy or practice (i.e., it exercised unfet- agency employee provision.
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