American Security Programs, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2019

368 N.L.R.B. 151 (N.L.R.B. 2019)

368 NLRB No. 151
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.
American Security Programs, Inc. and Union of Pa-
triots Plaza. Case 05–CA–211315
December 16, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On November 14, 2018, Administrative Law Judge
Michael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
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, findings,2 and conclusions, to

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge inadvertently stated that the Respondent unilaterally im-
plemented its final offer on November 27, 2017, rather than November
28, as the parties had stipulated. The judge also inadvertently attributed
a quotation from Centinela Hospital Medical Center, 363 NLRB No.
44, slip op. at 3 (2015), to Atlantic Queens Bus Corp., 362 NLRB 604
(2015). We correct these inadvertent errors, which do not affect the
disposition of this case. We also do not rely on the judge's citation to
Area Trade Bindery Co., 352 NLRB 172 (2008), a case decided by a
two-member Board. See New Process Steel, L.P. v. NLRB, 560 U.S.
674 (2010).
For the reasons stated in his decision, we adopt the judge’s finding
that the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilater-
ally implementing its final offer in the absence of a valid impasse. We
do not, however, adopt the judge’s additional finding that the Respond-
ent violated Sec. 8(a)(5) and (1) by failing and refusing to meet and
bargain with the Union after it unilaterally implemented its final offer.
The complaint does not allege the latter violation, and the judge’s deci-
sion contains no analysis addressing either the merits of this additional
finding or whether the finding of this unalleged violation is appropriate
under the standard set forth in Pergament United Sales, 296 NLRB
333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
Chairman Ring agrees that the Respondent failed to meet its burden
of showing that the parties reached a valid impasse. In so finding, he
relies on evidence showing that the Respondent imposed shifting dead-
lines for the parties to reach agreement (including falsely claiming that
another entity, the Federal Protective Service, had imposed one of those
deadlines), and presented and shortly thereafter implemented a final
offer that changed the Respondent’s position on multiple significant
amend the remedy,3 and to adopt the recommended Or-
der as modified and set forth in full below. 4
We shall modify the judge’s recommended Order to
conform to our findings herein and to the Board’s stand-
ard remedial language. Specifically, to remedy the find-
ing that the Respondent unlawfully unilaterally changed
its terms and conditions of employment by implementing
its final contract offer absent impasse, we shall order the
Respondent to cease and desist, to rescind its unilateral
changes, and, before implementing any further changes,
to notify and, on request, bargain with the Union.
Based on his additional finding that the Respondent re-
fused to meet and bargain with the Union, the judge in-
cluded in his recommended order an affirmative bargain-
ing order. Because we are not adopting the judge’s re-
fusal-to-bargain finding, and because the unlawful uni-
lateral changes implemented by the Respondent in the
absence of a valid impasse do not warrant an affirmative
bargaining order, we will substitute a limited bargaining
order instead.5
Our colleague would adopt the judge’s recommended
affirmative bargaining order. She relies on several cases

noneconomic issues on which the parties had previously reached
agreement. Chairman Ring further notes that although he would not
require the Respondent to agree to mediation in order to reach a valid
impasse, the Respondent did not even respond to any of the Union’s
multiple requests for mediation. The Chairman does not rely, however,
on the judge’s findings that the decision to bargain economic terms by
email and the inexperience of the Union’s negotiators weigh against a
finding of impasse.
3 We amend the judge’s remedy to provide that the Respondent
make all delinquent contributions to the applicable benefit funds, in-
cluding any additional amounts due to the funds on behalf of unit em-
ployees in accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, we amend the judge’s remedy to
provide that the Respondent make unit employees whole for any ex-
penses they may have incurred as a result of the Respondent’s failure to
make such payments in accordance with Kraft Plumbing & Heating,
252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). Further, to the extent that an employee
has made personal contributions to a fund that are accepted by the fund
in lieu of the Respondent’s delinquent contributions during the period
of the delinquency, the Respondent will reimburse the employee, but
the amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes to the funds.
4 We shall substitute a new notice to conform to the Order as modi-
fied.
5 Our colleague states that the Respondent did not except to the
judge’s recommended affirmative bargaining order, but “[i]t is . . .
firmly established that remedial matters are traditionally within the
Board’s province and may be addressed by the Board in the absence of
exceptions.” Indian Hills Care Center, 321 NLRB 144, 144 fn. 3
(1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
in which the Board issued such an order for violations of
the kind at issue here, the unlawful implementation of the
terms of a final offer in the absence of a valid impasse in
collective bargaining. Preliminarily, we observe that in
none of these decisions did the Board explain its choice
of that remedy. However, as the orders in some of the
cases our colleague cites attest, the violation to be reme-
died is that the employer unilaterally changed unit em-
ployees’ terms and conditions of employment without a
legal right to do so. See, e.g., Microdot, Inc., 288 NLRB
1015, 1023 (1988) (ordering employer to cease and de-
sist from “[u]nilaterally implementing changes in the
terms and conditions of employees in the bargaining unit
. . . without first engaging in bargaining with [the un-
ion]”); SGS Control Services, 275 NLRB 984, 989
(1985) (ordering employer to cease and desist from
“[m]aking unilateral changes in . . . terms and conditions
of employment”). In 2002, the Board began issuing so-
called limited bargaining orders, rather than affirmative
or general bargaining orders, to remedy unilateral-change
violations. See Mimbres Memorial Hospital, 337 NLRB
998, 998 fn. 2, 999 (2002), review denied sub nom.
NLRB v. CHS Community Health Systems, Inc., 108 Fed.
Appx. 577 (10th Cir. 2004).6 All but two of the cases our

6 Our colleague contends that Mimbres is distinguishable because
that case did not involve unilateral changes during negotiations for a
collective-bargaining agreement. This contention misses the point.
The Mimbres Board held that a limited bargaining order, rather than an
affirmative bargaining order, is the appropriate remedy for unlawful
unilateral changes. The Board’s rationale in that decision did not rely
on when or under what circumstances the unilateral changes were
made. Rather, the Board held that an affirmative bargaining order was
unnecessary because the employer “did not withdraw recognition of the
[u]nion.” 337 NLRB at 998 fn. 2. And the Board has long recognized
that Mimbres so held. See Long Island Head Start Child Development
Services, 345 NLRB 973, 973 fn. 1 (2005), enf. denied on other
grounds 460 F.3d 254 (2d Cir. 2006).
Although the Board has not been perfectly consistent, limited bar-
gaining orders have long been regarded as the standard remedy for
unilateral-change violations. See, e.g., Ferguson Enterprises, Inc., 349
NLRB 617, 617 fn. 1 (2007) (“[W]e will substitute a limited bargaining
order for the judge’s recommended affirmative bargaining order, which
is not necessary to remedy the [r]espondent’s unlawful unilateral
changes in terms and conditions of employment.”) (citing Mimbres);
Alta Vista Regional Hospital, 355 NLRB 265, 265 fn. 2 (2010) (“[W]e
shall substitute a limited bargaining order for the affirmative bargaining
order recommended by the judge, which is not necessary to remedy the
[r]espondent’s refusal to provide information and unilateral changes in
terms and conditions of employment.”), incorporated by reference in
357 NLRB 326 (2011), enfd. sub nom. San Miguel Hospital Corp. v.
NLRB, 697 F.3d 1181 (D.C. Cir. 2012); Tampa Electric Company, a
wholly owned subsidiary of TECO Energy, Inc. d/b/a TECO Peoples
Gas, 364 NLRB No. 124, slip op. at 1 fn. 2 (2016) (“We shall also
substitute a limited bargaining order for the judge’s recommended
affirmative bargaining order in accordance with Mimbres Memorial
Hospital[.]”); Walden Security, Inc., 366 NLRB No. 44, slip op. at 1 fn.
5 (2018) (same). Indeed, the Board has held that it was “error” to issue
an affirmative bargaining order for unilateral-change violations. See
colleague cites in footnote 4 of her partial dissent predate
Mimbres Memorial Hospital and thus are of questionable
authority on the remedial issue presented here. Post-
Mimbres, the Board has been inconsistent. Our col-
league cites two cases in which it issued an affirmative
bargaining order to remedy unilateral changes effected
through implementation of a final offer absent a valid
impasse, but in at least two other cases, the Board did not
do so. See Mike-Sell’s Potato Chip Co., 360 NLRB 131,
141 (2014); Southcoast Hospitals Group, Inc., 365
NLRB No. 100, slip op. at 1 fn. 2, 2 (2017) (limited bar-
gaining order).7
The Board’s remedial discretion is broad, see, e.g.,
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–899 (1984),
and for 8(a)(5) violations of the type at issue here, we
believe Mike-Sell’s and Southcoast reflect the better
choice. They are consistent with the cases cited in foot-
note 6, above, which demonstrate that the limited bar-
gaining order is the standard remedy for unilateral-
change violations. Moreover, an affirmative bargaining
order remedy would add nothing to the Respondent’s
legal obligations. Under our order, the Respondent must
cease and desist from implementing a final offer absent a
valid impasse, it must rescind its unilateral changes, and
it must not depart from the status quo ante without giving
the Union notice and opportunity to bargain. By opera-
tion of law—specifically, Section 8(d) and 8(a)(5)—the
Respondent must, on request, bargain in good faith with
the Union, and during such negotiations for a collective-
bargaining agreement, it must refrain from making fur-
ther unilateral changes unless and until negotiations
reach a valid impasse. See Bottom Line Enterprises, 302
NLRB 373 (1991), enfd. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
The only material difference an affirmative bargaining

Print Fulfillment Services LLC, 361 NLRB 1243, 1247 fn. 22 (2014)
(finding unilateral-change violations, and stating that “[a]lthough the
complaint did not allege that the [r]espondent generally failed and
refused to recognize and bargain with the [u]nion, the judge’s recom-
mended Order included language reserved for such an allegation [i.e.,
an affirmative bargaining order]. We shall correct this error by substi-
tuting a limited bargaining order appropriate to the violations of Sec.
8(a)(5) we have found.”) (emphasis added).
Our colleague says an affirmative bargaining order is warranted be-
cause of “the absence of evidence establishing that the Respondent
actually continued to bargain with the Union.” In other words, she
would base the remedy on the Respondent’s failure to prove that it
acted lawfully, even though the complaint did not allege, and the Gen-
eral Counsel did not prove, that it acted unlawfully by failing and refus-
ing to bargain. This proposition refutes itself.
7 Our colleague contends that both of these cases include distin-
guishing facts that explain the absence of an affirmative bargaining
order. However, the Board did not state that it relied on these or any
other facts in fashioning its remedy for the unlawful implementation of
the final offer.
AMERICAN SECURITY PROGRAMS, INC. 3
order would make would be to preclude the unit employ-
ees, for as long as a year, from exercising their Section 7
rights to choose to be represented by a different union or
by no union at all. See, e.g., Caterair International, 322
NLRB 64 (1996). Based on the foregoing considera-
tions, we believe that for violations of the type at issue
here—absent any finding of an unlawful refusal to bar-
gain or withdrawal of recognition—an affirmative bar-
gaining order with its corresponding decertification bar is
not necessary to effectuate the purposes of the Act.8
ORDER
The National Labor Relations Board orders that the
Respondent, American Security Programs, Inc., Reston,
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Making unilateral changes in unit employees’ terms
and conditions of employment by unilaterally imple-
menting its last, best, and final offer at a time when it had
not reached a valid impasse in bargaining with the Union
of Patriots Plaza (the Union) for a collective-bargaining
agreement.
(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 changes in the terms and conditions of
employment for its unit employees that were unilaterally
implemented on November 28, 2017.
(b) Before implementing any further changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All full-time and regular part-time security officers em-
ployed by the [Respondent] at the Patriots Plaza I and
II Buildings currently located at 395 and 375 E Street,
S.W., Washington, D.C.; but excluding all office cleri-
cal employees, managerial employees, and supervisors
as defined in the Act.
(c) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral implementation of its final offer in the

8 This case has brought to the surface an inconsistency in Board
precedent, which we have addressed. It does not involve a doubt or
uncertainty created by the Respondent’s wrongdoing. Accordingly, the
general rule, cited by our colleague, that doubts should be resolved
against the wrongdoer does not apply here.
manner set forth in the remedy section of the judge’s
decision.
(d) Compensate unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 5,
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.
(e) Make all delinquent contributions to the applicable
benefit funds on behalf of unit employees that have not
been paid since November 28, 2017, including any addi-
tional amounts due the funds, in the manner set forth in
this decision.
(f) Make unit employees whole for any expenses en-
suing from the failure to make the required contributions
to the applicable benefit funds, with interest, in the man-
ner set forth in this decision.
(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 Washington, D.C. facilities copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees

9 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and former employees employed by the Respondent at
any time since November 28, 2017.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 5 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. December 16, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting in part.
A newly certified union, whose president and bargain-
ing representative had no prior labor experience, began
negotiating with the employer for a first collective-
bargaining agreement. The negotiations did not go
smoothly—the employer refused to negotiate wages
other than by email, misrepresented communications
about its service contract with the government that mate-
rially affected employees’ terms and conditions of em-
ployment, fabricated deadlines to pressure the union to
accept its proposals, and, finally, unilaterally implement-
ed its regressive final proposal before the parties had
reached an impasse. The majority correctly finds that
this conduct was unlawful,1 but mistakenly fails to order
a full remedy. As I will explain, the Board should issue
an affirmative bargaining order, in addition to the other
remedies ordered here. In the circumstances of this case,
an affirmative bargaining order—which specifically re-
quires the employer to bargain in good faith with the
union—is standard and appropriate. The judge recom-
mended an affirmative bargaining order, and the employ-
er did not except.
I.
A very brief review of the Respondent’s unlawful con-
duct helps to demonstrate the need for an affirmative

1 I agree with my colleagues that no lawful impasse was reached
here. That conclusion is supported not only by the factors relied upon
by the majority, but also by (as considered by the judge) the Union’s
inexperience and the Respondent's insistence on conducting email
negotiations over the most important subject of concern to the Union.
See generally Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub nom American Federation of Television and Radio Artists, AFL–
CIO v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).
bargaining order here. The Respondent, which provides
contract security services for federal agencies, had such a
contract with the Federal Protective Services (FPS), an
agency within the Department of Homeland Security.2
The Respondent’s security officers who worked under
the FPS contract were previously represented by another
labor organization before the Union was certified on Sep-
tember 2, 2016, to represent them.
The Union’s certification issued shortly before the
predecessor union’s collective-bargaining agreement
with the Respondent, and the Respondent’s service con-
tract with FPS, were set to expire at the end of September
2016. At the Respondent’s request, FPS extended the
existing service contract another year (until September
30, 2017) and subsequently to March 31, 2018, maintain-
ing existing wages above the prevailing wage rate.
Meanwhile, the Respondent received a new FPS con-
tract, to take effect December 1, 2017,3 and both the Re-
spondent and the Union expressed their desire to reach a
new agreement in time to submit it to FPS before that
date.
The parties thus commenced bargaining. After reach-
ing agreement on noneconomic terms over the course of
six in-person meetings between May 19 and September
1, the Respondent stated that going forward, it would
negotiate economic terms only by email. Throughout the
remaining exchange of proposals, which diverged on the
subject of wages, the Respondent ignored the Union’s
repeated requests for mediation and refused to consider
historical wage rates. As the judge explained more fully,
the Respondent accompanied its economic proposals
with “short, ever-changing deadlines,” including a false
ultimatum that the Union sign its “best and final offer”
by September 19 to be recognized by FPS, followed by
several threats that it would revert to the lower prevailing
wage on December 1 if no agreement were reached by
October 31. The Respondent tied its series of bargaining
deadlines to the renewal of the FPS contract, while mis-
representing its communications with FPS -- and failing
to divulge to the Union that FPS had extended the con-
tract term through March 31, 2018. The Respondent
revised its final offer, modifying noneconomic proposals
that had been agreed to before September 1. After its
fabricated deadlines had come and gone without an
agreement, the Respondent informed the Union on No-

2 The contract was governed by the McNamara-O’Hara Service
Contract Act (SCA), which requires contractors to pay their employees
the area’s prevailing wage rates. The U.S. Department of Labor enforc-
es the SCA and issues "wage determination" orders setting the mini-
mum wage that must be paid. If a collective-bargaining agreement
provides for higher than prevailing wages, and is submitted with a bid,
the employer may be reimbursed at that higher rate.
3 All subsequent dates are in 2017, unless otherwise indicated.
AMERICAN SECURITY PROGRAMS, INC. 5
vember 28 that it would implement its final offer, effec-
tive December 1.
II.
I join the majority in finding that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
implementing its final offer without bargaining to a
good-faith impasse. Contrary to the majority, however, I
would adopt the judge’s recommended affirmative bar-
gaining order (which the Respondent did not except to).
The Board’s remedial obligation is to effect “restoration
of the situation, as nearly as possible, to that which
would have obtained but for” the unfair labor practices.
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
Here, the judge’s recommended affirmative bargaining
order is necessary to restore the status quo ante to the
point in time when the Respondent effectively terminated
the parties’ negotiations by announcing that it would
implement its final offer. Indeed, an affirmative bargain-
ing order is the Board’s standard remedy in these cir-
cumstances, because an employer’s unlawful implemen-
tation of its final offer interrupts the bargaining process.
This necessitates an order requiring the parties to resume
good-faith bargaining.4
The majority refuses to issue such a remedy here in
part because the Board is not adopting the judge’s find-
ing that the Respondent failed and refused to resume
bargaining after the Respondent’s unlawful implementa-
tion. But the judge also relied upon the Respondent’s
multiple unilateral changes to mandatory subjects of bar-
gaining, made both prior to and upon the unlawful im-
plementation of its final offer. These unilateral changes
were, by their very nature, “tantamount to an outright
refusal to negotiate” on the relevant subjects. NLRB v.
Katz, 369 U.S. 736, 746 (1962). Indeed, such unilateral
action “is a circumvention of the duty to negotiate which
frustrates the objectives of Sec. 8(a)(5) much as does a
flat refusal.” Id. at 743.5 An affirmative bargaining or-
der is necessary to ensure that the Respondent resumes

4 See e.g., Atlantic Queens Bus Corp., 362 NLRB 604, 607, 616
(2015); Coastal Cargo Co., 348 NLRB 664, 664-665, 668 (2006);
Bottom Line Enterprises, 302 NLRB 373, 375 (1991), enfd. sub nom.
Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994);
Microdot, Inc., 288 NLRB 1015, 1016 (1988); Milwaukee Terminal
Services, 282 NLRB 637, 637, 646 (1987); SGS Control Services, 275
NLRB 984, 987-989 (1985).
5 I join the majority in not adopting the judge's violation relating to
the Respondent's post-implementation actions, as they were not alleged
in the complaint. The Respondent’s unilateral implementation of its
final contract proposal, and its concomitant failure and refusal to bar-
gain were, however, fully alleged in the complaint and litigated as the
main issue in this case.
bargaining in accordance with its statutory duties (which,
of course, it has already violated).6
The majority also maintains that an affirmative bar-
gaining order would add nothing to the Board-issued
cease-and-desist and limited bargaining order remedies
addressing the Respondent’s unilateral changes, except
for a decertification bar precluding a challenge to the
Union’s status as bargaining representative. To the con-
trary, neither cited remedy for the unilateral changes ac-
tually puts the parties back at the bargaining table. And
neither remedy fully recognizes that it was the Respond-
ent that disrupted the collective-bargaining process.
Thus, instead of requiring the Respondent (the wrongdo-
er here) to initiate further bargaining, so as to resume
where the parties left off, those remedies place the bur-
den on the Union (the wronged party) to request such
bargaining, with little anticipation of success.
Finally, in addition to an affirmative bargaining order
being the standard remedy in this situation, there is no
evidence suggesting that such an order is unnecessary, as
in Mike-Sells, noted above, where there was evidence
that the parties actually had resumed bargaining. Thus,
an affirmative bargaining order remains entirely appro-
priate here, given the absence of evidence establishing
that the Respondent actually continued to bargain with

6 The cases cited by the majority do not undercut the appropriate-
ness of that remedy. Mimbres Memorial Hospital, 337 NLRB 998
(2002), review denied sub nom. NLRB v. CHS Community Health Sys-
tems, Inc., 108 Fed.Appx. 577 (10th Cir. 2004), bears no resemblance
to the situation in this case: an employer’s unlawful implementation of
its final offer and the remedy required to restore the parties to where
they were before the unlawful implementation. The employer in
Mimbres unilaterally changed its absence and sick leave policies inde-
pendently of contract negotiations, without implementing any kind of
final offer that terminated negotiations. Id. at 998 fn. 2, 999. Mimbres
is not only distinguishable, but like the other cases cited by the majori-
ty, remedies an entirely different violation-a unilateral change to an
established term and condition of employment, see, e.g., Tampa Elec-
tric Company, supra, 364 NLRB No. 124, slip op. at 9, not the shutting
down of months of bargaining toward an overall collective-bargaining
agreement as we have here. The majority also mistakenly contends that
two cases—Mike-Sell’s Potato Chip Co., 360 NLRB 131 (2014), and
Southcoast Hospitals Group, Inc., 365 NLRB No. 100 (2017)—show
that the Board has been inconsistent in issuing affirmative bargaining
orders in similar circumstances. In Mike-Sell’s, there was affirmative
evidence that the parties had continued to bargain after the employer
unilaterally implemented its final offer, and that they continued to meet
until shortly before the hearing. This removed the need for a bargain-
ing order to restore the status quo. In Southcoast Hospitals Group, the
Board found that the employer unlawfully withheld relevant infor-
mation requested by the union, in addition to implementing its final
offer. The status quo ante was restored in part by the Board’s order to
produce the withheld information, which put the parties back on equal
footing to resume bargaining. Although the Board did not explain why
it chose not to also issue an affirmative bargaining order, the case cer-
tainly does not stand for the proposition that such an order is unneces-
sary or inappropriate in these circumstances.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the Union.7 Issuing such an order in these circumstances,
moreover, comports with the Board’s well-established
position that in a remedial context uncertainty resulting
from unlawful conduct must be resolved against the
wrongdoer.8
For all of these reasons, the Board should issue an af-
firmative bargaining order here to fully remedy the Re-
spondent’s unlawful conduct. Because the majority’s
failure to do so is unwarranted, I dissent on this point.
Dated, Washington, D.C. December 16, 2019
______________________________________
Lauren McFerran, Member
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
activities.
WE WILL NOT make unilateral changes in our unit em-
ployees’ terms and conditions of employment by unilat-

7 The majority misconstrues the significance of the absence of proof
of continued bargaining. Contrary to the majority, I am not suggesting
that the Respondent needs to prove it continued bargaining in order to
avoid the finding of another violation. It’s simply a factual matter that
goes to whether the standard affirmative bargaining order is necessary
to remedy the violation we all agree upon.
8 See generally Total Security Management Illinois, LLC, 364
NLRB No. 106, slip op. at 18 & fn. 41 (2016) (placing burden on the
employer to establish that discharged employee would have been fired
for cause even absent employer’s refusal to bargain); Basin Frozen
Foods, 320 NLRB 1072, 1074 (1996) (backpay proceeding). The
Board's view, moreover, accords with that of the Supreme Court: “The
most elementary conceptions of justice and public policy require that
the wrongdoer shall bear the risk of the uncertainty which his own
wrong has created.” Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265
(1946).
erally implementing our last, best, and final offer at a
time when we have not reached a valid impasse in bar-
gaining with the Union of Patriots Plaza (the Union) for a
collective-bargaining agreement.
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 changes in the terms and condi-
tions of employment for our unit employees that were
unilaterally implemented on November 28, 2017.
WE WILL, before implementing any further changes in
wages, hours, or other terms and conditions of employ-
ment of our unit employees, notify and, on request, bar-
gain with the Union as the exclusive collective-
bargaining representative of our employees in the follow-
ing bargaining unit:
All full-time and regular part-time security officers em-
ployed by the [Respondent] at the Patriots Plaza I and
II Buildings currently located at 395 and 375 E Street,
S.W., Washington, D.C.; but excluding all office cleri-
cal employees, managerial employees, and supervisors
as defined in the Act.
WE WILL make our unit employees whole for any loss
of earnings and other benefits suffered as a result of the
unlawful unilateral implementation of our final offer,
plus interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 5, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years for each employee.
WE WILL make all delinquent contributions to the ap-
plicable benefit funds on behalf of our unit employees
that have not been made since November 28, 2017, in-
cluding any additional amounts due the funds.
WE WILL make our unit employees whole for any ex-
penses ensuing from our failure to make the required
contributions to the applicable benefit funds, with inter-
est.
AMERICAN SECURITY PROGRAMS, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/05-CA-211315 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., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
AMERICAN SECURITY PROGRAMS, INC. 7
Clark C. Brinker, Esq., for the General Counsel.
Jason M. Branciforte and Tony W. Torain, II, Esqs. (Littler
Mendelson, P.C.), of Washington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Washington, District of Columbia on September
12, 2018. The complaint alleges that American Security Pro-
grams, Inc. (the Company or Respondent) unilaterally imple-
mented its last contract proposal and changed employees’ terms
and conditions of employment, including wage rates and health,
welfare and pension contributions, without first bargaining with
the Charging Party, the Union Patriots of Plaza (the Union), to
an overall good-faith impasse for a collective-bargaining
agreement (CBA) in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act).1 The Company admits
that it unilaterally implemented its last contract proposal, but
did so only after it reached a lawful, good faith impasse with
the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Company and the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation with an office and place of
business in Reston, Virginia, has been engaged in the business
of providing security services to various industries and gov-
ernment agencies outside the State of Virginia, including the
Federal Protective Service at various locations in Washington,
D.C., valued in excess of $50,000. The Company 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
A. The Company’s Operations
The Company provides contract security services to the fed-
eral government at various locations throughout the Washing-
ton, DC metropolitan area. The contracts at issue are with the
Federal Protective Services (FPS), an agency within the De-
partment of Homeland Security, and involve security officers

1 29 U.S.C. §§ 151-169.
assigned to 395 and 375 E Street, S.W., Washington, D.C. (395
or 375 employees). These locations are also referred to as Pa-
triots Plaza I and II, respectively.
To obtain a contract with FPS, companies submit proposals,
including wages and benefits, responding to FPS’s request for a
quotation. As a federal agency, FPS contracts over $2,500 fall
under the McNamara –O'Hara Service Contract Act (SCA), 41
U.S.C. § 6701 et seq., The SCA requires general contrac-
tors and subcontractors performing services on covered federal
or District of Columbia contracts in excess of $2,500 to pay
service employees in various classes no less than the wage
rates and fringe benefits found prevailing in the locality as de-
termined by the United States Department of Labor, or the rates
contained in a predecessor contractor's collective bargaining
agreement. This is also known as the prevailing wage.
SCA regulations are enforced by the United States Depart-
ment of Labor (DOL), which issues wage determination orders
setting the minimum wages that contractors must pay to their
employees on federal contracts. Contractors can, however, pay
higher wages than those set by the DOL. If an employer has a
CBA with a union that contains wages and benefits for its secu-
rity officers, it has to submit the CBA to FPS as part of the bid.
In such instances, the FPS generally considers the CBA to be
the wage determination and reimburses the company at the
higher rates in the CBA for the security officers’ wages and
benefits. The FPS-approved higher rate is then paid to the unit
employees. As a result, the contractor maintains the same prof-
its regardless of the wage rate, so long as FPS reimburses the
contractor at that rate. The Company, a federal contractor for at
least the past ten years, has never paid its employees a higher
wage rate than what FPS has paid the Company.
On October 1, 2011, the Company was awarded a one-year
contract by FPS to provide security services at Patriots Plaza
(the 2011 contract). The 2011 contract term also included four
option years, all exercised by FPS and the last of which expired
on September 30, 2016. The Company’s CBA with the Na-
tional Association of Special Police and Security Officers
(NASPSO), the predecessor union, also expired on that date.
At the Company’s request, FPS extended the 2011 contract
until September 30, 2017.2 During the additional year, FPS
paid the Company the same amount for wages and benefits that
were paid pursuant to the expired CBA with NASPSO.3
On June 21, the Company bid on a new FPS security ser-
vices contract at 375 and 395 E Street commencing December
1. On August 31, FPS awarded the new contract to the Com-
pany. On September 26, with the 2011 contract expiring five
days later, FPS extended that contract until March 31, 2018.4
Wages and benefits remained the same during this period.5
B. The Collective-Bargaining Agreement
Prior to September 2016, NASPSO represented the security
officers employed by the Company at Patriots Plaza I and II.6
The CBA with NASPSO at Patriots Plaza I and II expired on

2 All dates hereinafter refer to 2017 unless otherwise indicated.
3 R. Exh. 5.
4 R. Exh. 3.
5 R. Exh. 6-8.
6 R. Exh. 1-2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
September 30, 2016.7 Sometime before that contract expired,
the security officers decided to withdraw from NASPSO and
form a Union to represent themselves. Rondell Cropper, a
security officer at Patriots Plaza II with no prior labor experi-
ence, became the Union’s president and was instrumental in
petitioning the Board for certification of the Union as the ex-
clusive collective bargaining representative of security officers
at Patriots Plaza I and II.8 The Union won the subsequent elec-
tion and, on September 2, 2016, was certified as the exclusive
collective-bargaining representative of the following unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time security officers employed
by the [Company] at the Patriots Plaza I and II Buildings cur-
rently located at 395 and 375 E Street, S.W., Washington,
D.C.; but excluding all office clerical employees, managerial
employees, and supervisors as defined in the Act.9
C. The Bargaining Sessions
1. May 19
Negotiations with the Union did not commence until May,
over eight months after certification. All bargaining sessions
were conducted at the Company’s corporate office.10 Mark
Phinney, vice president of government operations, was the
Company’s lead negotiator, assisted by human resources man-
ager Sylvia Martinez and administrative assistant Siobhan
Bloomer. Cropper and shop steward David Harris negotiated
on behalf of the Union, assisted by vice president Dorian
Brown and recording secretary Jacqueline Anderson.
At the first meeting, the parties exchanged initial CBA mod-
el proposals. After the Union refused to review the Company’s
proposed model, the Company left the room to review the Un-
ion’s version. Sometime later, the Company representatives
returned to the conference room. Phinney informed Cropper
that the Company agreed to proceed with bargaining based on
the Union’s CBA template.11 He also reminded Cropper that
unit employees were facing wage determination.12 Although
the Union’s CBA included economic proposals (wages, health
and welfare benefits), the parties did not discuss any of those
provisions, which sought to treat Patriots Plaza I and II equally
and pay the officers a wage that escalated each year on October
1.

7 R. Exh. 1-2.
8 Cropper had no prior membership in a labor organization or expe-
rience in collective bargaining. (Tr. 19, 24.)
9 Company employees assigned to another building, Patriots Plaza
III, are represented in labor matters by another labor organization,
Union Rights for Security Officers (URSO).
10 The parties did not share bargaining notes as to what they agreed
to, although Cropper notated agreements as to the noneconomic por-
tions on his draft. He incorporated the agreed upon provisions into an
updated version of the Union’s model CBA after each meeting. His
last update was made after the September 1 meeting. (Jt. Exh. 23; GC
Exh. 2; Tr. 45-48.)
11 GC Exh. 1.
12 It is undisputed that Phinney told Cropper prior to their first bar-
gaining session that unit employees were facing “wage determination”
and he wanted to have a CBA in place by September 19.
2. May 26
At the second meeting, Phinney read the Union’s proposal
and agreed to the $6 proposal for health and welfare. No other
economics were discussed at the second meeting. Also at the
second meeting, the parties discussed the issue of temporary
employees. The Union expressed its opposition to having tem-
porary employees work at the facility and the Company agreed
to drop this point.
3. June 30
The parties met again on June 30 and bargained over the
noneconomic provisions. After the June 30 meeting, Bloomer
emailed Cropper the Company’s proposed language for several
provisions: Article 11 (No Strike No Lockout), Article 15 (Jury
Duty) and Article 20 (Training and Requalification).13
4. August 3 and 18
The parties met on August 3 and 18. During these meetings
and the rest of the month, they discussed and agreed to several
topics, including gear-up and gear-down time, compensation
for beak time, jury duty, firearm licensing and qualification,
and holiday pay. The parties also exchanged proposals on duty
and leave pay, but did not reach agreement at that time.
On August 21, Harris emailed Phinney a copy of the CBA
for a nearby “sister building” staffed by Union members:
As we discussed in CBA negotiations on Friday, August 18,
2017, you will see the current base rate, health & welfare, and
pension for our sister building 500 C. st. as of September 1,
2016. Base rate $29.00 H&W $6.00 Pension $1.19.
According to sources a new CBA agreement is about to be
signed any day now with the new wages to go into effect as
follows: Base rate $33.00 H&W $7.00 Pension $1.59.
Now when you cross reference, the current rates and pending
rates of our sister contract, compared to what we are asking
for, you shall see it’s the market rate. Please keep in account
that on Friday August 18, 2017, Mr. Phinney you read the old
CBA agreements of PP1 and PP2, and seen that we didn’t re-
ceive any type wage increase in 3-4 years. Thank you in ad-
vance for your time and we will be looking forward to meet-
ing with you soon.14
On August 31, in preparation for the bargaining session the
next day, Phinney emailed Cropper a FPS listing of applicable
wage determination rates in the absence of CBA rates:
The attachment is the notice from FPS indicating which sites
have a CBA in effect. Please note that DC0208 and DC0175
are at WD or Wage Determination. This is highlighted in
green.
I wanted to make sure we have an understanding about tomor-
rows negotiation. Following up from previous meetings, we

13 Jt. Exh. 2-4.
14 Jt. Exh. 5.
AMERICAN SECURITY PROGRAMS, INC. 9
have discussed that we will need two separate CBA’S or use
one CBA but with a separate economics for each site. We
will not be able to use one CBA for these two sites using the
same economics, this will not be feasible and we will not be
able to continue our negotiations.
However, from the above attachment we are running out of
time. Please let me know where you stand on separate eco-
nomics.15
5. September 1
By the end of the September 1 meeting, the parties had
agreed upon all of the noneconomic terms, including hours
required for full-time work. At that point, Phinney said the
parties no longer needed to meet and could communicate re-
garding the economic terms by email.16
D. Bargaining Over the Economic Terms
On September 8, the Company submitted its first economic
proposal, an offer to pay 395 employees $25.85 on October 1,
$26.40 on October 1, 2018, and $26.95 on October 1, 2019.
For the officers at 375, the Company offered to pay $22.75 on
October 1, $23.90 on October 1, 2018, and $25.10 on October
1, 2019.17
On September 11, the Union counteroffered with a wage re-
duction of $.0.10 less per hour for each proposed year:
Attached to this email is a copy of our counter offer to your
recent email received on Friday September 8, 2017. Please
Mr. Phinney if we need to get a mediator involved to resolve
these wage issues please let us know asap. Thank you in ad-
vance for your time and have a nice day.18
Phinney responded the same day with a counteroffer raising
the hourly rates for 375 employees by $0.25 in 2017, $0.50 in
2018 and $1.25 in 2019. He did not, however, propose any
change to his previous wage offer for 395 employees and the
benefits of employees of both buildings. Nor did he address the
Union’s request for mediation.19
On September 12, the Union counteroffered by proposing
wages of $28.89 on October 1, $31.89 on October 1, 2018 and
$34.15 on October 1, 2019 for 395 employees. For 375 em-
ployees, the Union proposed $25.85 on October 1, $29.85 on
October 1, 2018, and $34.15 on October 1, 2019. The email
also included an explanation that the proposal was based on a
comparison of wage rates paid at nearby locations staffed by
private security officers and, once again, proposed mediation:

15 Jt. Exh. 6.
16 This finding is based on Cropper’s undisputed and credible testi-
mony. (GC Exh. 2; Tr. 44-48.)
17 Jt. Exh. 7.
18 While I credit Cropper’s testimony that he consulted with a media-
tor, I did not give weight to the uncorroborated hearsay statements
allegedly made to him by the mediator. (Tr. 55-57; Jt. Exh. 8.) See
RJR Communications, Inc., 248 NLRB 920, 921
(1980) (“hearsay evidence is admissible before administrative agencies,
if rationally probative in force and if corroborated by something more
than the slightest amount of other evidence).
19 Jt. Exh. 9.
Attached to this email you will find two (2) attachments, 1 the
counter offer from the [Union], and 2 a site comparison of
PSO sites within a 10 minute radius of 395 and 375. Now the
last time we had a meeting at the corporate office in Virginia,
you mentioned that you willing to give up a 3.5% wage in-
crease each year for PP1 395 didn’t receive a pay increase.
Well as it stands 395 and 375 didn’t receive a wage increase
in 2014, 2015, 2016, and 2017. Now, if you multiply 4
(years) x 3.5% = 14% + $25.34 (base rate) = $28.89 new
base rate. (emphasis in original)
Also if you look at the site comparison chart of your competi-
tion that I attached, you will find that the average salary ac-
cording to 2016 standards, we also separated the buildings
395 & 375 at your request Mr. Phinney. What more can you
ask for, many of those other sites pay uniform allowance, shift
differential, boot allowance, sick/personal leave up to 88
hours and etc. All that we are asking for is not to be paid the
highest wages but a fair wage. Mr. Phinney we have came to
an agreement on the entire CBA so far, lets resolve this final
issue and continue moving forward in the right direction. If
need be I can provide to you the CBA agreements of your
competition so you can see and read the wages for yourself,
the same way I provided to you the CBA of our sister build-
ing FEMA 500 C. ST that we used to be attached to. Once
again Mr. Phinney, if we can’t resolve these minor wage is-
sues and come to some type of agreement on our own. The
[Union] isn’t obliged to the idea of seeking the help of a fed-
eral mediator from the Department of Labor to resolve all
wage disagreements.
Read over the information that I’ve provided to you and let’s
sign a deal, we will be looking forward to hearing from you
soon. Thank you in advance for your time and have a nice
day.20
Phinney replied later that day with an explanation as to the
factors that the Company was considering with respect to the
appropriate wage rate going forward, but did not respond to
Harris’ request for mediation:
I want to be clear I stated I would communicate you for this
year and the CPI was 1.5%. I am looking to compensate you
for the years going forward and trying to bring 375 up as fast
as I can, but I am not going to look back at the last four years.
We go forward. I do appreciate all of your information, and I
will look at it.21
Harris replied on September 13, stating that the parties were
at a “stalemate” with respect to wages and, searching for a way
to create movement on the issue, once again suggested the par-

20 Taken in context with the rest of this and other statements, Harris’
remark that the Union “isn’t obliged to the idea” reasonably appears to
mean that the Union did not object to the idea of seeking the help of a
federal mediator. (Jt. Exh. 10.)
21 Jt. Exh. 11.
-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ties submit the remaining economic issues to mediation:
Good morning Mr. Phinney, it seems as you do not under-
stand where the [Union] is coming from pertaining to fair
wages. I have provided vital information to [the Company]
more than once, proving as to what the fair wages should be
for buildings 375 & 395 and you disregarded it. We have
agreed 100% on the CBA except the wages portion, and we
agreed to every change that you disputed within the new
CBA. Since we have come to a stalemate as far as wages are
concerned, and you do not want to meet us halfway. I ask
you once again; Mr. Phinney do you need [the Union] to con-
tact a federal mediator provided through The Department of
Labor to step in and help us resolve this minor issue we are
having with you concerning wages? We will be looking for-
ward to receiving your response very soon. Thank you in ad-
vance for your time and have a nice day.22
On September 14, Phinney counteroffered with the Compa-
ny’s “best and final offer” of an hourly wage rate for 395 em-
ployees of $25.95 for 2017, $26.60 for 2018 and $27.25 for
2019; and for 375 employees, an hourly wage rate of $23.20 for
2017, $25.05 for 2018, and $27.05 for 2019. Once again, he
made no mention of the Union’s request for mediation.23 He
followed-up on September 16 in an email to Harris and Crop-
per, reminding them that “we have to have a CBA by Septem-
ber 19 in order to get the CBA to FPS for them to recognize
it.24
On 12:29 p.m. on September 19, Harris replied, disputing
Phinney’s assertion that the Company had submitted its best
and final offer:
You say you have submitted your best and final offer even
though it’s just a $0.51 raise to base and $0.00 for H&W and
$0.00 for pension for 395 after 4 years of no raises. We tried
to negotiate with you fairly but only to be disregarded and dis-
respected. You didn’t even try to meet us halfway with wag-
es, H&W and pensions. I submitted our best offer with sup-
porting information as far as PSO building comparisons, the
sister contract we were attached before ASP was awarded the
Patriot Plaza contract. Not to mention the majority of build-
ings that were on the list will soon be ASP contracts. So with
that being said, you are fully aware of the current wages being
paid to PSO’s in the NCR, and you chose to disregard it for
what reason no one understands. So I guess at this moment
we are at a impasse. Thank you for your time and have a nice
day.25

22 Phinney’s alleged understanding of “stalemate” – that the Union
was not going to propose “any other offers or proceed with negotiations
as far as wages,” is contradicted by the continued exchange of counter-
offers by the parties. (Jt. Exh. 12; Tr. 115.)
23 Jt. Exh. 13.
24 It is undisputed that applicable federal regulations required the
Company to submit a CBA to FPS ten days before the expiration of the
contract. (Jt. Exh. 14; Tr. 116.)
25 Phinney and Cropper testified as to their impressions of what the
latter meant by his reference to “impasse,” neither of which is control-
ling here. (Jt. Exh. 15; Tr. 68-69, 117-118.)
Phinney responded to Harris at 4:00 p.m. that day with yet
another final wage offer and warning that unit employees faced
pay cuts if a CBA was not signed by that day:
Knowing that if we don’t sign a CBA by COB today every-
one at 375 and especially 395 will have their pay rate reduced
to wage determination as indicated on the RFQ which I
showed you during our negotiations. Therefore in an effort to
see that the officers receive an increase, the company is will-
ing to consider a $.15 increase for 395 E only, to bring the
wages to 26.10; everything else staying the same for one year,
then renegotiate the Wages, H&W and Pension. This is so the
officers do not receive a pay cut.
I need an answer by COB today or I will not be able to pre-
sent an REA to FPS for any new wages and 375 E and 395 E
Street will go to wage determination of $20.57, H&W of 4.13
with sick [leave] of 56 hours and no pension.26
The Union did not respond to that proposal. Unbeknownst to
the Union, however, around that time the Company and FPS
had been discussing a six-month extension of the expiring con-
tract until March 31, 2018. In connection with that extension,
on September 20, John DeSimone, FPS’s contracting officer,
sought clarification from the Company as to the applicable
wages and fringe benefits for the extension.27 Rachna Koulgi,
the Company’s vice president for government services, replied
on September 26:
Thanks for giving us the additional time to submit the CBA
related documentation for the extended option period. Please
see attached – the letter for DC0208 (375 E Street) and
DC0175 (395 E Street). The CBA DC0331 (500 E Street) is
also attached. I’m waiting for the 355 E Street) MOU. Do
you have the leeway to wait another couple of hours? Please
let me know.
DeSimone acquiesced and later that day Koulgi sent the fol-
lowing letters explaining that the Company was unable, after
several bargaining sessions, to reach an agreement with the
Union with respect to 375 E Street and 395 E Street:
In order to safeguard the interests of all parties concerned to
include the government stakeholder and to not cause signifi-
cant hardship to our security officers at the above mentioned
sites, [the Company] will honor the economic terms (wages
and fringe benefits to include H&W, pension, vacation, holi-
day, sick leave, relief breaks, etc.) of the latest CBA adden-
dum which effective beginning October 1, 2014 for both the
above stated locations (enclosed with this correspondence) for
the entire duration of the referenced option period (emphasis
added).28

26 Jt. Exh. 16.
27 R. Exh. 7.
28 There is no indication in the record that the Company ever made
the Union aware of the 6-month contract extension by FPS. (R. Exh. 6-
7.)
AMERICAN SECURITY PROGRAMS, INC. 11
Koulgi also sent a similar notification to another FPS con-
tracting officer, Debby Abraham.29 As a result, FPS issued an
Amendment of Solicitation/Modification of Contract, dated
September 26, and unit employees’ wages at 375 and 395 were
to remain unchanged during the six-month extension of the FPS
contract, which stated in pertinent part:
A. Pursuant to FAR 52.217-8, this modification exercises the
six month extension effective October 1, 2017.
B. The following Department of Labor Wage Determinations
are incorporated into the contract effective October 1, 2017:
. . .
The remaining sites (DC0175 and DC0208) on this contract
will remain covered under the following Wage Determina-
tions previously incorporated into the contract via P00012 and
P00017:
CBA-2013-6080, Revision 1: Collective Bargaining Agree-
ment between American Security Programs, Inc. and National
Association of Special Police and Security Officers (NASPO)
(covers DC0175)
CBA-2013-6084, Revision 1: Collective Bargaining Agree-
ment between American Security Programs, Inc. and National
Association of Special Police and Security Officers (NASPO)
(covers DC0208).30 . . .
On October 21, Phinney, without making any reference to
the six-month extension, notified the Union “that the sites at
375 and 395 E Street will go to SCA wage determination as of
12.1.2017 if we don’t have a CBA in place as of 10.31.2017.
Please contact me if you want to proceed.”31 He provided no
explanation as to why the alleged deadline had moved from
September 19 to October 31.
On October 23, Cropper responded to Phinney with an alter-
native approach by the Union with respect to wages and bene-
fits, and seeking a prompt resolution:
Good morning, Mr. Phinney. I am the President of [the Un-
ion] we love to have the CBA ratified by 10/31/2017. As we
negotiated earlier about the buildings not separated because
they are under the same collective bargaining unit, we are at
32.00 base and 6.00 H&W; so if we can get the CBA ratified
ASAP our base will not escalate to 33.00 base. You have
seen the comparison of the NCR, and our base rate is market
rate. Thanks again Mr. Phinney for addressing this issue; We
hope to come to a prompt resolution.32
On November 1, the government’s contracting officer

29 R. Exh. 5.
30 Phinney’s testimony that he “thought it mainly was for a bridge
between October 1st and December 1st, when the new contract was
supposed to start,” is contradicted by the Company’s documentary
evidence of the FPS contract extension through March 31, 2018. (Tr.
119-120; R. Exh. 3.).
31 Jt. Exh. 17.
32 Jt. Exh. 18.
emailed Koulgi inquiring whether the Company “anticipate[d]
any further CBA amendments for the remaining [E street sites]
for this contract.” Koulgi replied a short while later:
The two locations that are operating under CBAs are DC0175
and DC0208 (the officers are currently being paid CBA wag-
es and benefits). Unfortunately, despite our efforts, negotia-
tions are at a standstill since the union representatives are not
budging from their demands of a single CBA covering both
locations and $32.00 in wages, $6.00 in H&W plus other ben-
efits for both sites.
Although we have until November 20th technically to submit
new CBAs or amendments for incorporation into the contract
(subject, I believe to receipt of the task order for the base pe-
riod), based on the current status of discussions, we do not an-
ticipate executing a CBA/CBAs for these sites.33
On November 15, Phinney, without mentioning the six-
month extension, notified the Union that the Company was
moving the deadline again with an offer to avoid wage deter-
mination by entering into a Memorandum of Understanding
maintaining the status quo as to wages and benefits for an addi-
tional year:
We have heard from FPS, and they have stated that if we do
not reach an agreement by 11.17.2107 and a provide a CBA
with agreed upon wages then the two sites 375 E Street and
395 E Street, SW will revert to wage determination of $20.57
with $4.13 H&W with the company providing sick leave. At
this time [the Company] and the [Union] are too far apart
from an agreement on wages to establish a CBA. Therefore,
we would offer that the [Union] and [the Company] establish
a Memorandum of Understanding and send this forward to
FPS which will hold the wages where they are at this time as
we continue to work on resolving the wage issue. The re-
solved wages once agreed to would then be effective
10.1.2018.
Therefore, we need to establish this Memorandum of Under-
standing by 11.17.2017 allowing FPS to look at the situation
and make a determination on the Memorandum of Under-
standing.
If approved by FPS, the Memorandum of Understanding’s
pay rates will go into effect on 12.1.2017, if FPS does not ap-
prove the Memorandum of Understanding, we will pay the
wage determination pay rates mentioned above.
I have provided a Memorandum of Understanding see at-
tached.34
On November 17, Phinney sent the Union a revised final of-

33 R. Exh. 9.
34 Once again, the Company’s assertion regarding the alleged dead-
line are contradicted by the fact that FPS afforded the Company an
extension until March 31, 2018 of the wage rates set forth in the 2014
NASPSO contract. (Jt. Exh. 19.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
fer with a rate lower than its November 15 offer. It consisted of
a proposed CBA with current rates reduced to the aforemen-
tioned wage determination levels and also threw in new non-
economic proposals even though the parties had previously
agreed to such provisions by September 1:
FPS has reiterated unless they receive a signed agreement by
1700 on 11.20.2017, FPS states that as of December 1, 2017,
the officers’ pay rate at 375 E Street and 395 E Street (con-
tract # HSHQEC-17-D-00005) would be at wage determina-
tion of $20.57 for wages and $4.27 for H&W.
Therefore, [the Company] is sending this revised Last, Best
and Final offer for 375 E Street and 395 E Street sites on the
FPS contract # HSHQEC-17-D-00005. After 11.20.2017 at
1700, this offer shall be rescinded. If there are any questions,
please contact me.35
In a conversation with Phinney later that day, Cropper re-
jected Phinney’s latest proposal and, once again, urged the
Company to agree to submit the remaining economic issues to
mediation or arbitration. Phinney replied that he just wanted to
know if Cropper received his November 17 email but, once
again, ignored the Union’s request to engage in mediation.36
On November 20, Phinney re-sent the Union the Company’s
“signed Last, Best and Final offer as we have not heard back
from you as of Friday 11.17.2017.” The proposal reiterated
that wages would be set at wage determination, effective as of
December 1, and “to be determined” in each of the following
years.37
On November 28, Phinney emailed Cropper and Harris, ref-
erencing the Company’s offer of November 17 and request that
the Union reply by November 20. Omitting any reference to
his conversation with Cropper on November 17 and the latter’s
request that the parties submit the economic issues to mediation
or arbitration, Phinney said that the Company would implement
immediately its “Best, Last and Final offer unilaterally and will
be informing the officers of this change to wage determination
of $20.57 and H&W of $4.27 as of 12.1.2017.”38 On Decem-
ber 1, the terms of the Company’s final offer of November 28
went into effect.
Phinney’s final email produced a sharp rebuke from Cropper
on December 3 and yet another request that the Company agree
to engage in mediation or arbitration:
Per conversation November 17, 2017, Mr. Phinney I spoke
with you about the memorandum of understanding and said to
you as well as Ms Glenita that I will not agree to the reduction

35 Jt. Exh. 20.
36 This finding is based on the assertions in Cropper’s subsequent
email of December 3, none of which were responded to or otherwise
disputed by Phinney. (Jt. Exh. 22.)
37 As previously found, Cropper did in fact respond to Phinney’s
November 17 email in a conversation later that day. Phinney, however,
was simply interested in confirming Cropper’s receipt of the email and
ignored Cropper’s request for continued bargaining through mediation.
(Jt. Exh. 21(a)-(b).)
38 R. Exh. 4.
of wages; and your reply was thank you, and I just wanted to
know if you received my email. Now if you are determined
to undermine scrupulous business practices I suggest that we
sincerely need a federal mediator or arbitration to resolve this
issue of wages, the union has asked you several of times for a
federal mediator and you have not responded. And no! detri-
mental action was taken against [the Company]. And for you
to reduce your employees pay is total retaliation against the
union! We will not stand for being taken advantage of you
have hard working dedicated employees and you destroyed
the morale of [Company] employees. Mr. Phinney if you ev-
er want to talk face to face about 395 and 375 I’m happy to
listen, but now you give me no other option except to speak to
our representatives in Washington DC.39
Phinney did not respond to Cropper’s request to bargain and, as
was the case with the Union’s previous requests for mediation,
ignored that request as well.40
Legal Analysis
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer to “refuse to bargain collectively with the rep-
resentatives of [its] employees.” Section 8(d) further defines the
duty to bargain collectively as “the performance of the mutual
obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement or any ques-
tion arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either
party.”
An employer violates its duty to bargain collectively by uni-
laterally implementing terms and conditions of employment
without first bargaining to impasse or agreement. NLRB v.
Katz, 369 U.S. 736, 743 (1962); accord Taft Broadcasting Co.,
163 NLRB 475, 478 (1967), enforced sub nom. Am. Fed'n of
Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir.
1968); Teamsters Local Union No. 639 v. NLRB, 924 F.2d
1078, 1084 (D.C. Cir. 1991). The party asserting impasse bears
the burden of proving it. Wayneview Care Ctr., 664 F.3d 341,
347 (D.C. Cir. 2011).
Impasse exists only if “there [i]s no realistic possibility that
continuation of discussion . . . would [be] fruitful” and “the
prospects of reaching an agreement ha[ve] been exhausted.”
Am. Fed'n of Television & Radio Artists v. NLRB, 395 F.2d at
628-29. A finding of impasse requires futility, not just frustra-
tion. Powell Electrical Mfg., 287 NLRB 969, 973 (1987). In
determining whether impasse has been reached, the Board con-
siders the totality of the circumstances, including “[t]he bar-
gaining history, the good faith of the parties in negotiations, the
length of the negotiations, the importance of the issue or issues

39 Jt. Exh. 22.
40 The vague testimony of Phinney, an experienced bargaining repre-
sentative, that he “didn’t think mediation would help at all,” was not
credible. That he repeatedly ignored requests for mediation without
even the briefest of explanations clearly indicated that he was not inter-
ested in achieving a deal on the economic issues prior to any of the
shifting deadlines. (Tr. 126.)
AMERICAN SECURITY PROGRAMS, INC. 13
as to which there is disagreement, [and] the contemporaneous
understanding of the parties as to the state of negotiations.” Taft
Broadcasting Co., 163 NLRB at 478. In addition, “continuous
negotiating progress is strong evidence against an im-
passe.” Teamsters Local 175 v. NLRB, 788 F.2d 27, 31 (D.C.
Cir. 1986). One or two factors alone, however, may be suffi-
cient to demonstrate the absence of impasse. See Monmouth
Care Center v. NLRB, 672 F.3d 1085 (D.C. Cir. 2012).
I. BARGAINING HISTORY
The Company had a previous bargaining history with the
NASPSO, the predecessor union, but there is no evidence as to
the nature of that relationship. In 2016, unit employees re-
placed NASPSO with the Union. The Union, newly created,
had no previous bargaining relationship with the Company or
any other employer. Eight months after the Union’s formation,
the parties began bargaining over an initial contract. The rela-
tionship encountered complications even before bargaining
began, however, when the Company advised the Union that
bargaining needed to be completed by a government issued
deadline. Encountering a newly created labor organization
operated entirely by unit employees, the Company had no rea-
son to believe that negotiations would be accomplished quickly
or by a certain date unless it accelerated negotiations.
Under the circumstances, the lack of a bargaining history be-
tween the parties mitigates against a finding of impasse. See Grin-
nell Fire Systems, Inc., 328 NLRB 585, 596 (1999), enfd. 236
F.3d 187 (4th Cir. 2000), cert. denied 122 S.Ct. 49 (2001) (no
impasse where there the lack of a significant bargaining history
warranted more time to arrive at an initial agreement).
II. GOOD FAITH OF THE PARTIES DURING BARGAINING
In determining whether impasse existed, it is inconsequential
that the complaint did not allege a lack of good faith bargaining
by the Company. As the Supreme Court has explained,
“[c]learly, the duty [to meet and confer] thus defined may be
violated without a general failure of subjective good faith; for
there is no occasion to consider the issue of good faith if a party
has refused even to negotiate in fact— ‘to meet * * * and con-
fer’—about any of the mandatory subjects.” NLRB v. Katz,
supra at 742-743. See also Grinnel Fire Systems, Inc., 328
NLRB at 596-597 (no impasse, notwithstanding the absence of
bad faith, where employer expressed unwillingness to move
from its position and the union had not offered specific conces-
sion, but had declared its intention to be flexible and sought
further bargaining).
In any event, the Company’s assertion – that “it consistently
demonstrated its desire to reach agreement during its negotia-
tions with the Unions” – is partially correct. While it is true
that the parties reached agreement on every provision except
wages and benefits by September 1, it is also evident that the
Company decelerated negotiations after that date, deciding to
forgo in person meetings and, instead, bargain with the inexpe-
rienced Union representatives by email. The Company chose
this approach even though the most important issues – the eco-
nomic provisions – remained and it professed the need to sub-
mit executed CBAs to FPS, by ever-changing deadlines.
Moreover, the Company repeatedly ignored the Union’s re-
quests that the parties submit to mediation or arbitration on the
economic issues.
III. LENGTH OF THE NEGOTIATIONS
The parties met on six occasions between May 19 and Sep-
tember 1, with the first meeting essentially a meet and greet
where CBA drafts were exchanged. By September 1, the par-
ties had negotiated and agreed to the non-economic provisions
of an initial CBA. Even though the Company advised the Un-
ion that it was in a hurry to wrap up bargaining because of the
FPS contract and the Union’s initial proposal on May 19 in-
cluded economic proposals, the Company provided no counter-
offers to those aspects during the initial three and a half months
of bargaining. At the conclusion of the September 1 meeting,
the Company’s lead negotiator told the Union representatives
that further in person bargaining was unnecessary and the par-
ties could negotiate over the remaining issues – the economic
terms – by email. He did so even though he told the Union
representatives the previous day that “we are running out of
time” to complete economic bargaining because of wage de-
termination, a comment that he reiterated on September 8 when
the Company submitted its first wage and benefits proposal.
Under the circumstances in this case, such an unorthodox ap-
proach was a recipe for failure. See Dish Network Corporation,
366 NLRB No. 119, slip op. at 3 (2018) (Board “precedent is
clear that only in-person, face-to-face meetings satisfy the Act's
obligation to meet and confer”).
Although the parties are not expected to participate in a set
number of sessions, the Board has found six sessions insuffi-
cient to support an impasse. See Hendrickson Trucking Co.,
365 NLRB No. 139, slip op. at 22 (2017) (parties met six times,
including once before a federal mediator); U.S. Testing Co.,
324 NLRB 854, 860–61 (1997), enfd. 160 F.3d 14 (D.C. Cir.
1988) (parties were “not at the end of their rope” where eco-
nomic proposals were exchanged at the fourth of six bargaining
sessions); see also Taft Broadcasting Co., supra (no impasse
after 23 sessions). Also significant is the length of bargaining
on the topic or topics upon which alleged impasse is premised.
See Old Man’s Home of Philadelphia, 265 NLRB 1632, 1634
(1982) (limited discussion on issue of wages during a 6 month
period in which parties met 17 times was insufficient to estab-
lish impasse); Beverly Farm Foundation, Inc., 323 NLRB 787,
793 (1997) (no impasse where parties bargained on economic
issues during only 3 of 19 sessions).
In this case, the length of negotiations was remarkably short
and the parties did not even meet in person to bargain over
economic terms at any time before the Company declared im-
passe on November 28 and unilaterally reduced unit employ-
ees’ wages and benefits to the minimum level permitted under
federal regulations. The Company exchanged its initial eco-
nomic proposal on September 8 and revised it several times
until its final proposal on November 20. During that time, each
party shared in the delays—first, the Union in not responding to
the Company’s September 19 proposal until October 23, and
the Company by delaying three weeks before counteroffering
on November 17. Accompanying the Company’s proposals
were short, ever-changing deadlines precipitated by its FPS
contract renewal – first September 19, then October 1, then
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
November 17 and, finally, November 20 (identical to Novem-
ber 17). At the time of the November 17 final offer, which
introduced a new economic proposal, albeit a regressive one
decreasing wages, and several new non-economic proposals,
the Company alluded to a December 1 deadline. Unbeknownst
to the Union, that was not true, since FPS had extended the
Company’s contract until March 31, 2018.41
On November 27, when the Company unilaterally imple-
mented its last final offer of November 20 in order to meet the
wage determination deadline, the parties were not at deadlock
since the Union had expressed flexibility in its economic coun-
teroffers and a desire to submit the economic issues to media-
tion. The SCA only established the minimum amount of wages
and benefits for unit employees and the Company was free to
pay them a higher amount if it chose. The Company, however,
coupled each proposed minimal wage increase with a looming
deadline due to its reluctance to compensate unit employees at
levels much higher than wage determination levels.
Under the circumstances, the Company’s unilateral imple-
mentation was thus based on an artificial deadline and did not
support a finding of impasse. That the Company repeatedly
ignored the Union’s repeated requests for mediation clearly
suggests that it was predetermined to run out the clock and
impose the SCA’s prevailing wage in lieu of a CBA wage rate.
An employer, however, cannot curtail bargaining and declare
impasse based on an artificial deadline rather than exhausting
all avenues of bargaining. See Grinnell Fire Systems, Inc., 328
NLRB at 598 (no impasse where employer invoked an arbitrary
deadline instead of bargaining to deadlock); Newcor Bay City
Division, 345 NLRB 1229, at 1228-1239 (2005) (no impasse
where employer’s unilateral action motivated by a rush to im-
plement its own final proposal). As the Board stated in Man-
agement Training Corp., 317 NLRB 1355, 1358 (1995):
Thus, the Act ensures that the wages and benefits of employ-
ees working for service contractors under a collective-
bargaining agreement would not be reduced with a new ser-
vice contract but would, at a minimum, be in accordance with
rates provided in the contract. In these circumstances, to ques-
tion whether such contractors are able to engage in meaning-
ful bargaining seems anomalous.
IV. IMPORTANCE OF THE ISSUE OVER WHICH THERE IS
DISAGREEMENT
It is undisputed that the issues over which there remains dis-
agreement—wages and benefits—were of paramount im-
portance to the parties. Royal Motor Sales, 329 NLRB 760,
763 (1999), enfd. 2 F. App'x 1, (D.C. Cir. 2001).
(“[n]egotiating the details on such important subjects as wages
is at the heart of collective bargaining”); Brotherhood of Loco-
motive Fireman and Enginemen, 447 F.2d 1127, 1136 (5th Cir.
1971) (“to each union and to its every member there are no
minor disputes, and that all controversies entail economic is-

41 As previously noted, Phinney’s vague and unsubstantiated impres-
sion regarding a December 1 deadline is belied by the record. (R. Exh.
3.)
sues of transcendent importance”). See also dissent of Chair-
man Miscimarra in Stein Industries, Inc., 365 NLRB No. 31,
slip. op at 9 (2017) (“there was no need for the parties to dis-
cuss noneconomic matters before the Respondent declared
impasse because economic issues were of overrid-
ing importance.”). Each party, however, took different ap-
proaches in attaining its economic objectives.
The Union incorporated economic proposals in the initial
CBA template utilized by the parties. Cognizant of the Com-
pany’s expressed desire to wrap up negotiations by September
19, the Union accompanied its subsequent offers of September
11, 12 and 13 with suggestions that the parties seek the assis-
tance of a mediator. The Company, on the other hand, engaged
in productive bargaining over the noneconomic issues during
the first three and a half months without presenting any eco-
nomic proposals. Its inaction was not likely attributable to a
belief that the economics were unimportant, but rather, recogni-
tion that they entailed the most difficult bargaining. See Grin-
nell Fire Systems, Inc., 328 NLRB at 597 (one could expect
that bargaining over wages and benefits, “in order to be fruitful,
the negotiations would be long and arduous.”).
Given the reality that negotiations over two locations would
likely be long and arduous, the Company’s approach was to
leverage its position by repeatedly tying its economic proposals
to looming FPS contract deadlines. Of great importance to the
Company was the need to keep wages and benefits separate for
each facility, while it was equally as important for the Union to
achieve equalization in wage and benefit rates for unit employ-
ees at both facilities. Either way, the parties needed to bargain
over 18 rates for the 3 year term of an initial CBA.
Finally, with the latest of the Company’s alleged wage deter-
mination deadlines fast approaching, it obliterated any chance of
a quick resolution by suddenly reintroducing noneconomic pro-
posals that had already been agreed upon. The significance of
that development was that the Company had placed back on the
table topics of importance to it over which the parties’ brief
history suggested there was every reason to expect eventual
agreement. At the very least, the new proposals required further
bargaining. See Atlantic Queens Bus Corp., 362 NLRB No. 65
(2015) (“eleventh-hour changes in the Respondent's bargaining
proposals, particularly on the centrally important issue of
healthcare, persuade us that the Respondent was not warranted
in assuming that further bargaining would be futile.”).
V. CONTEMPORANEOUS UNDERSTANDING OF THE PARTIES
The parties did not have a contemporaneous understanding
that further bargaining would be futile when the Company im-
plemented its last, best and final offer on November 27. That it
was the last in a series of similar pronouncements by the Com-
pany conveying certain wage levels to the Union as last, best
and final offers was not unusual. In collective bargaining, as
Judge Posner has observed, “[a]fter final offers come more
offers,” Chicago Typographical Union Local 16 v. Chicago
Sun Times, 935 F.2d 1501, 1508 (7th Cir. 1991).
Not surprisingly, the parties continued to exchange proposals
even after the Union refused to capitulate to the Company’s
“last, best and final” offers by several shifting deadlines – Sep-
tember 19, October 31, November 17 and, finally, November
AMERICAN SECURITY PROGRAMS, INC. 15
20. Aside from rejecting the Company’s final proposal to re-
duce wages and benefits to the wage determination level, the
Union consistently conveyed flexibility on the economic issues
and suggested bargaining through mediation on September 11,
12 and 13, all prior to the Company’s first artificial deadline of
September 19. See Grinnell Fire Protection Sys. Co., 328
NLRB at 585-586 (demonstrations of flexibility and willing-
ness to compromise reflect an understanding that further nego-
tiations could be fruitful and thus cut against a finding of im-
passe).
Even aside from the parties’ understanding as to where they
stood on the economic issues, the Company resurrected several
noneconomic issues relating to full-time hours, gear up and
gear down time, paid breaks, holiday pay, temporary employ-
ees, firearms training and qualifications. As previously ex-
plained, the emerging history between the parties indicates that
they were unlikely to end up at impasse on any of these topics.
If anything, the piling on of a host of noneconomic issues onto
outstanding economic issues at the eleventh hour presented a
new platter of options for the parties, negating the notion that
further bargaining would have been futile.
While the Company reached for the end of its self-imposed
rope when it unilaterally reduced wages and benefits on No-
vember 27, it is equally as clear that the Union still sought to
bargain as evidenced by its December 3 protest, which included
another request to mediate the dispute. That response to the
Company’s final offer of November 27 was not untimely since,
unbeknownst to the Union, FPS agreed to reimburse the Com-
pany at the expired CBA wage and benefit rates through March
31, 2018.
On several occasions, an inexperienced unit employee serv-
ing as a Union negotiator, cited “impasse” or “stalemate” on the
economic issues, but did so in the context of a request that the
parties continue bargaining with the assistance of a mediator.
In addition, such remarks were followed by subsequent coun-
teroffers and indications of flexibility, especially the change in
approach by the Union on October 23. In such situations, the
Board evaluates the utterance of legally significant words in
context. See PRC Recording Co., 280 NLRB 615, 635 (1986)
(citing Builders Institute of Westchester County, 142 NLRB
126, 127 fn. 2 (1963) ([t]he use of words like ‘impasse’ or
‘deadlock’ by the parties, even relating to overall issues, does
not necessarily imply that future bargaining would be futile.”).
That is especially the case where, as here, the statement is made
by an inexperienced negotiator. See Colfor, Inc., 282 NLRB
1173, 1180 (1987), enfd. 838 F.2d 164 (6th Cir. 1988) (state-
ment by an “untutored negotiator who uses this term of art
without legal precision” did not establish the existence of im-
passe).
In any event, even if the parties were at impasse in September
when Harris referenced “impasse” and “stalemate,” they broke
that impasse by continuing to bargain after that time. “The
Board and courts have made clear that anything that creates a
new possibility of fruitful discussion (even if it does not create
the likelihood of agreement) breaks an impasse as do further
negotiations and bargaining concessions, implied or explicit.”
PRC Recording Co., 280 NLRB at 640 (citing cases); see also
Royal Motor Sales, 329 NLRB at 762 (no valid impasse where
union made deadlock breaking proposal 2 days earlier).
Finally, it is irrelevant whether the Company’s disregard for
the Union’s repeated requests for mediation was a deliberate
attempt to leverage its economic position by pinning inexperi-
enced union negotiators against artificial deadlines or mere
oversight. The Union’s mediation requests, all ignored by the
Company, coupled with the Union’s continued flexibility on
economic issues, establishes that neither had a reasonable belief
that they were at impasse. See Powell Electrical Manufactur-
ing Company, 287 NLRB at 971 (union’s efforts to involve
mediator indicated its belief that there was room for move-
ment); Grinnell Fire Systems, Inc., 328 NLRB at 595 (same);
Area Trade Bindery Co., 352 NLRB 172, 176 (2008) (same).
IV. TOTALITY OF THE CIRCUMSTANCES
There is no allegation that the Company’s actions or inaction
amounted to bad faith. The Company failed, however, to show
that any of remaining Taft Broadcasting Company factors sup-
ported a finding of impasse, as the evidence established that the
parties bargained an insufficient length of time over the vitally
important economic issues and there was no contemporaneous
understanding in their new relationship that they were at im-
passe. Because “[b]oth parties must believe that they are at the
end of their rope” for impasse to exist, the Union’s conduct
reflecting its belief that further negotiations could be fruitful
was enough to forestall a finding of impasse. See PRC Record-
ing Co., 280 NLRB at 635 (“anything that creates a new possi-
bility of fruitful discussion . . . breaks an impasse); cf. TruServ
Corp. v. NLRB, 254 F.3d 1105, 1116-17 (D.C. Cir.
2001) (finding impasse when the union requested additional
meetings, but made no further proposals after the employer
announced its final offer). Moreover, to countenance the Com-
pany’s total disregard for requests by inexperienced Union
representatives to resume in person bargaining, before and after
the declared impasse, with the assistance of a mediator is anti-
thetical to the purposes of the Act. See e.g., Hooker Chemicals
& Plastics Corporation, 224 NLRB 1535, 1538 (1976) (“con-
ciliation is so important to the promotion of stable labor rela-
tions”).
Accordingly, I find that the Company violated Section
8(a)(5) and (1) of the Act by declaring an impasse on Novem-
ber 27, 2017 and refusing to meet and bargain before and after
it implemented a unilateral change in wages and benefits.
CONCLUSIONS OF LAW
1. Respondent, American Security Programs, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Union Patriots of Plaza, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Union is, and, at all material times, was the exclusive
collective bargaining representative of the following appropri-
ate units at Respondent's Washington, D.C. facilities:
All full-time and regular part-time security officers employed
by the [Company] at the Patriots Plaza I and II Buildings cur-
rently located at 395 and 375 E Street, S.W., Washington,
D.C.; but excluding all office clerical employees, managerial
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
employees, and supervisors as defined in the Act.
4. By unilaterally implementing the terms of its last, best,
and final collective-bargaining agreement offer on November
27, 2017 without bargaining with the Union to a good-faith
impasse, the Respondent violated Section 8(a) (5) and (1) of the
Act.
5. By failing and refusing to resume bargaining collectively
towards a new collective-bargaining agreement on or after No-
vember 27, 2017, the Respondent violated Section 8(a)(5) and
(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Specifically, I shall order Respondent to rescind the unlawful
unilateral changes contained in its last, best and final offer and
unlawfully implemented/made on about November 27, 2017,
regarding the unit employees' terms and conditions of employ-
ment, if the Union requests, and to restore the status quo ante, if
the Union requests, that existed prior to the changes until such
time as Respondent begins to bargain with the Union in good
faith to a collective-bargaining agreement or good-faith im-
passe. This obligation also includes that Respondent immedi-
ately begin to bargain in good faith with the Union to a new
collective-bargaining agreement or bona fide impasse.
The Respondent shall be ordered to make whole any unit
employees affected by the unlawful unilateral changes. This
includes reimbursing the employees for any loss of earnings or
benefits resulting from the changes. The make-whole remedy
shall be computed in accordance with Ogle Protective Service,
183 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons, 283 NLRB 1173 (1987), and
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). It also includes making any bene-
fit contributions on behalf of eligible unit employees that have
not been made since the date of the unlawful changes, plus
reimbursement of unit employees for any expenses incurred as
a result of Respondent’s failure to make the required contribu-
tions to their health and welfare fund accounts, such amounts to
be computed in the same manner as backpay described above.
Finally, the Respondent shall be ordered to pay any other
amounts due the health and welfare funds, less any amounts
that the fund would have paid out for covered claims but did
not pay out as a result of the Respondent’s unlawful implemen-
tation of its final offer in the absence of a valid impasse.
In accordance with AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016), the Respondent shall, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, file with the Regional Director for Region 5 a
report allocating backpay to the appropriate calendar year for
each employee. The Regional Director will then assume re-
sponsibility for transmission of the report to the Social Security
Administration at the appropriate time and in the appropriate
manner.
Finally, the Respondent shall post an appropriate informa-
tional notice, as described in the attached appendix. This notice
shall be posted in the employer's facilities or wherever the no-
tices to employees are regularly posted for 60 days without
anything covering it up or defacing its contents. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 27, 2017. When the notice is issued
to the employer, it shall sign it or otherwise notify Region 5 of
the Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The Respondent, American Security Programs, Inc., its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment of its
unit employees without first notifying Union Patriots of Plaza
(the Union) and giving it an opportunity to bargain.
(b) Failing and refusing to bargain on request with the Un-
ion as the exclusive collective-bargaining representative of the
unit employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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 changes in the unit employees' terms and
conditions of employment contained in the Respondent's last,
best, and final offer that were unilaterally implemented on
about November 27, 2017.
(b) Make the unit employees whole for any loss of earnings
and other benefits, including reimbursement for an expenses
incurred as a result of the Respondent’s failure to make the
required payments since about November 27, 2017, in the man-
ner set forth in the remedy section of this decision.
(c) Compensate the affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director of Region 5, within 21 days
of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to the
appropriate calendar years.
(d) Make all contractually required contributions to the Un-
ion’s health and welfare and other funds on behalf of all eligi-
ble unit employees that it has failed to make since about No-
vember 27, 2017, if any, with interest, plus any other amounts

42 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
AMERICAN SECURITY PROGRAMS, INC. 17
due the health and welfare funds, less any amounts that the
fund would have paid out for covered claims but did not pay
out as a result of the Respondent’s unlawful implementation of
its final offer in the absence of a valid impasse.
(e) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time security officers employed
by the [Company] at the Patriots Plaza I and II Buildings cur-
rently located at 395 and 375 E Street, S.W., Washington,
D.C.; but excluding all office clerical employees, managerial
employees, and supervisors as defined in the Act.
(f) Within 14 days after service by the Region, post at its fa-
cilities in Washington, D.C., a copy of the attached notice
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or 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. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 27, 2017.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. November 14, 2018
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 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 change your terms and conditions of employ-
ment without first notifying the Union Patriots of Plaza (the
Union) and giving it an opportunity to bargain.
WE WILL NOT fail and refuse to bargain on request with the
Union as the exclusive collective-bargaining representative of
our unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the changes in your terms and conditions of
employment that were unilaterally implemented on about No-
vember 27, 2017.
WE WILL make whole all bargaining unit employees for any
loss of earnings and other benefits resulting from our unlawful
unilateral implementation of terms and conditions of employ-
ment on about November 27, 2017, plus interest.
WE WILL make all contractually required contributions to the
Union’s health and welfare funds on behalf of all eligible unit
employees that we have failed to make since about November
27, 2017, if any, with interest, plus any other amounts due the
health and welfare funds, less any amounts that the fund would
have paid out for covered claims but did not pay out as a result
of the Respondent’s unlawful implementation of its final offer
in the absence of a valid impasse.
WE WILL file with the Regional Director of Region 5, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar year(s) for each employee.
WE WILL, on request, bargain with the Union as the exclusive
collective-bargaining representative of our employees in the
following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time security officers
employed by American Security Programs, Inc. at the
Patriots Plaza I and II Buildings currently located at
395 and 375 E Street, S.W., Washington, D.C.; but
excluding all office clerical employees, managerial
employees, and supervisors as defined in the Act.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/05-CA-211315 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.