Paragon Systems, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 15, 2014

12-CA-105275 (N.L.R.B. May. 15, 2014)

JD(NY)–21–14
Tampa, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PARAGON SYSTEMS, INC.
and Case Nos. 12-CA-105275
12-CA-105291
UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA, LOCAL 236
Thomas Brudney, Esq., Counsel for the General Counsel.
Roman Gumul, Director, Labor Relations, for the Respondent
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on March 5,
2014 in Tampa, Florida. The Consolidated Complaint, which issued on December 31, 20131 and
was based upon unfair labor practice charges and amended charges filed on May 15, July 30
and July 31 by United Government Security Officers of America, Local 236, herein called the
Union, alleges that Paragon Systems, Inc., herein called the Respondent, violated Section
8(a)(5)&(1) of the Act by engaging in the following conduct: suspending seven employees
between February 25 and May 31 and discharging two employees on April 9 and April 15,
without notice to the Union and without affording the Union an opportunity to bargain with
respect to this discipline or with respect to the effects of this conduct; since about March 17 and
March 27, refusing to meet with the Union with respect to a grievance concerning the
suspension of employees for performance related issues as well as a grievance related to
employee Thomas Cifarelli’s employment; dealing directly with employees in the unit by
requiring them to sign its Dispute Resolution Agreement as a condition of employment; and
unreasonably delaying in furnishing the Union with relevant information that it requested on April
9, June 9 and June 16 by not furnishing this information to the Union until about September 17.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been engaged in providing security and guard
service to agencies of the United States Government in Florida and surrounding areas, and that
it has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7)
of the Act, and that the Union has been a labor organization within the meaning of Section 2(5)
of the Act.
II. The Facts
A. Dispute Resolution Agreement
On about December 1, 2012, the Respondent was awarded the contract by the Federal
Protective Service, herein the FPS, to provide security officers for certain federal buildings in

1 Unless indicated otherwise, all dates herein relate to the year 2013.
JD(NY)–21–14
2
Florida, which work had previously been performed by ERIS, which had a contract with the
Union. On about December 1, 2012, the Respondent recognized the Union as the exclusive
collective bargaining representative of the unit composed of armed and unarmed security
officers, but refused to assume the terms and conditions of the ERIS collective bargaining
agreement and, instead, negotiated a new collective bargaining agreement with the Union that 5
was effective from June 1, 2013 to November 30, 2014.
The principal witness herein was Larry Stacy, who is employed by the Respondent as
project manager for the contract with the FPS covering the unit employees involved herein. He
testified that in about February, employees told him that their pay stubs stated that they had to 10
sign certain documents, including Dispute Resolution Agreements2, herein called DRAs. After
speaking to Respondent’s Human Resources Department, he notified all supervisors that they
were to distribute DRAs to all unit employees, whether current employees or pre-employment
employees, to be signed and returned, and, prior to the distribution of these forms, he did not
inform the Union that these forms were being distributed to the bargaining unit employees. 15
About eleven employees signed these DRAs between March 19 and June 25. Shortly
thereafter, Stacy was told by Human Resources that employees in the bargaining unit were not
to be asked to sign these forms and he immediately instructed his supervisors to stop
distributing these forms to the unit employees, but he never told the employees that they did not
have to complete the forms. The only employees who were subsequently asked to sign these 20
forms were employees who were not in a bargaining unit. Sharon Ragsdale, who is employed
by the Respondent, testified that in about February, Sergeant Holmes handed her a copy of the
DRA and the acknowledgement and receipt of it and said, “Sign this.” She read them and said,
“I’m not signing this” and Holmes took them back and left. He never told her that the
Respondent was not requiring employees to sign the forms. Union President, Charles Mestas 25
testified that employees told him that they were being asked to sign the DRAs although he was
not notified prior to this time that the Respondent was asking the employees to sign these
forms, and he was never notified that the Respondent was rescinding the requirement that the
employees sign this form.
30
B. Refusal to Bargain About Discipline
The principal portion of this case presents the issue of whether an employer who has a
recognized or certified union representing certain of its employees has an obligation to bargain
with that union regarding the discipline of its union-represented employees prior to the execution 35
of the initial contract with that union.
The discipline involved herein for the nine employees took place between February 25
and May 31; alleged and admitted, is:
40
Joe Favell suspended on February 25.
Kevin Daley suspended on March 4.
Donald Mendez suspended on March 4.45
Joshua Wielder suspended on March 16.

2 Briefly stated, this form requires that all disputes between the employee and the
Respondent be resolved by an arbitrator, rather than by a court or jury trial.
JD(NY)–21–14
3
Thomas Cifarelli discharged on April 9.
Jose Robles discharged on April 15.
Duane Douglas suspended on April 29.5
Kelvin Strong suspended on April 30.
Anthony Durand-Gonzales suspended on May 31.
10
Although there were few credibility issues, I found Stacy to be a totally credible witness
who was open, direct and never evasive in his testimony and credit his testimony in total. He
testified that he did not notify Mestas, or anyone else from the Union, of the Respondent’s
decision to suspend Mendez, Strong, Daley, Favell, Durand-Gonzales, Douglas and Wielder
prior to their suspensions, and likewise did not notify Mestas, or anyone else from the Union, of 15
the decision to discharge Cifarelli, Robles and Carlovitch3 , nor did the Respondent offer to
bargain with the Union regarding these suspensions and discharges. Mestas testified that
“multiple times” during the negotiations with the Respondent from late 2012 to July, he told the
Respondent’s representatives that by discharging and suspended these employees they did not
treat the employees properly. Stacy testified that at no time during these negotiations, nor at any 20
other time, did the Union bring up the suspensions or the termination of Cifarelli and Robles or
ask to meet to discuss these disciplines.
Daley and Mendez- March 4
25
Daley and Mendez failed a “covert penetration test” conducted on March 4 when they,
allegedly, failed to identify an explosive device and failed to act properly in the situation by
allowing an individual into “a secure zone.” Because they failed to follow the proper procedure
during this test, failed to identify the device involved, allowed a suspect into a secure zone, and
“do not appear to accept the seriousness of the program,” Stacy recommended that Mendez be 30
removed from the facility and be retrained and that Daley be transferred to another facility, but
for whatever reason, they were each suspended for seven days. The Respondent did not notify
the Union about these suspensions either before or after the decisions were made.
Durand-Gonzales and Weider35
Durand-Gonzales’ alleged violation was that “he failed to follow post orders and had a
visitor with him during a lunch break on May 31, which is not authorized.” A Suspension
Request Form states: “Durand-Gonzales violated several policies at work on the 31st of May.
Didn’t raise the flag, didn’t make required checks and had visitor at lunch for 24 minutes.” On 40
June 6, Stacy emailed Nicole Ferritto, the Director of Employee Relations, requesting a three
day suspension for him, but adding: “Please provide guidance, after you review as to whether
my request is too strong/weak.” Ferritto emailed that he should be suspended indefinitely
pending a further investigation because he had other post order violations in the past. Stacy
was uncertain what length the final suspension was, although a summary prepared for the 45
hearing by the Respondent states that he received a three day suspension on May 31 for
“failure to follow post orders.” At no point during this process did Stacy or the Respondent
inform the Union of Durand-Gonzales’ suspension.

3 Carloviotch’s discharge is relevant only regarding the request for information allegation to
be discussed infra.
JD(NY)–21–14
4
On March 18, Stacy sent an email to Ferritto stating: “Please find attached an indefinite
suspension request on Joshua Weider. On the 15th and 17th of March he pulled his OC spray
and sprayed a defenseless raccoon with no provocation other than meanness.” Weider was
suspended on March 18, although it is unclear whether the suspension is for five days, as 5
stated in a summary prepared by the Respondent, or was “indefinite,” as Stacy stated to Ferritto
in an email dated March 18.
Douglas, Favell, and Strong
10
Douglas, Favel and Strong were suspended for creating an “open post.” When a guard
is the only officer to be present (for example, opening a post) and he/she is late or absent from
the assignment, that post is unattended or open. The situation is different, and not as serious
when the officer is late replacing another security officer who can remain on the post until the
replacement arrives. An open post could result in a fine or deduction in fees for the Respondent. 15
Stacy relied on the Respondent’s Security Officer Handbook for this discipline. Under Rules for
Personal Conduct, Major Rule Offenses, and states: “Discharge if warranted after unpaid
suspension and management investigation.” Numbers 12 and 29 state:
12. Refusal to submit to authority and/or refusal to follow instructions from supervisors 20
who have been appointed over him/her , or from a member of the client’s facility who has
the authority from the client to issue instructions to the security force; not following Post
Orders4 either written or verbal.
29. Violation of agency and contractor security procedures and regulations or violation of 25
the rules and regulations governing public buildings as set forth in…
Stacy testified that from December 1, 2012 to January 18, the Respondent was only issuing
counseling to the officers for open post violations; however, because of the large number of
open post violations in December and January, the Respondent decided to change the 30
punishment from counseling to a three day suspension.
Supervisor Kevin Young completed a Suspension Request Form for Douglas stating that
the Rule that was violated was: “Open Post.” The Request Form states: “PSO Douglas arrived
to post on time, but without his weapon. He returned to his house to get his weapon and 35
returned to post at 9:20, 4/29/2013…Requesting 24 hour suspension.” This suspension was
approved on April 29. Favell was given a three day suspension for an Open Post violation on
February 25 and Strong was also given a three day suspension on April 24 for an Open Post
violation.
40
Jose Robles
Robles reported ten minutes late for work on April 3, causing an open post violation. On
April 5, Stacy sent an email to Ferritto entitled Indefinite Suspension Jose Robles, stating: “On
the 3rd of April you approved a 5 day suspension for PSO Robles for causing a 10 minute open 45
post. Today I was informed that even though he was 10 minutes late (0810), he still signed the
139 at 0800. This is the reason for this request.” She responded: “Approved.” By letter dated
April 16, Ferritto wrote Robles, inter alia:

4 These are orders, prepared by the government, that the security officers receive describing
the officers’ daily functions.
JD(NY)–21–14
5
I am writing to notify you that effective immediately, your employment with Paragon
Systems is terminated. Your employment is being terminated for falsification of
government documents.
5
Specifically, it was determined that on 3 April 2013, you were observed arriving on post
after your scheduled arrival, approximately 10 minutes late; however, you signed in as if
you arrived at your scheduled time of 0800. During the company’s investigation into
these events, you admitted to arriving late and to signing in on the 139 as having arrived
at 0800 hours (your scheduled in-time). Falsification of time records is a violation of 10
company policy, specifically Major Rule #9, as well as Section 2.5 of the Security Guard
Information Manual.5
Mestas testified that he never requested to meet with Stacy regarding the suspensions of
Favell, Daley, Mendez, Wieder, Douglas, Strong or Durand-Gonzales, or regarding the 15
discharge of Robles.
Thomas Cifarelli
As is true of the allegations discussed above, it is alleged that the Respondent 20
discharged Cifarelli on April 9 without prior notice to the Union and without affording the Union
an opportunity to bargain about the discharge. The Complaint further alleges that the
Respondent refused to meet with the Union with respect to a grievance related to the
termination of Cifarelli’s employment and unreasonably delayed in furnishing the Union with
information that it requested pertaining to the grievance that it filed on behalf of Cifarelli. 25
The situation with Cifarelli commenced when his supervisor noticed that he arrived at his
post on March 11 six minutes late at 7:06, rather than 7:00, the time he was scheduled to begin
work, and he told Cifarelli to write on the Form 139 that he arrived at 7:06, which he initially did.
Subsequently, somebody wrote over the 7:06 and altered it by changing the initial entry to 7:00 30
and the hours worked column was written in for twelve hours, rather than eleven hours, fifty four
minutes. When Stacy was shown this form, “…I could immediately see that the entry was written
over, so an indefinite suspension request was initiated on PSO Cifarelli.” Cifarelli was called to
Stacy’s office on March 18 and told that because he falsified the Form 139 he was going to be
suspended. Cifarelli requested Union representation and Stacy told him that he could call 35
Mestas, and Stacy left his office so that Cifarelli could speak privately with Mestas. When Stacy
returned to his office, he told Cifarelli that he was being suspended. After Cifarelli left the office,
Stacy noticed that the document (the Form 139) that he had shown to Cifarelli had been altered

5 Respondent’s Security Officer Handbook, under Rules for Personal Conduct, “Major Rule
Offenses- Discharge, if warranted, after unpaid suspension and management investigation.
Possible probation period determined at the discretion of the Program Manager,” lists as No. 9:
“Falsification or unlawful concealment, removal, mutilation, or destruction of any official
documents or records…including 139s.” Further, under Progressive Discipline Policy, Causes
for Immediate Suspension, the Handbook states: “Some types of misconduct are so intolerable
that they [sic] be punished by suspension at the first occurrence. These include…falsification of
an employment application or other work documents or records…” The Federal Protective
Service Security Guard Information Manual, under “Acceptable Conduct,” states: “You must
report for duty at the assigned time and post. It is your duty to report on time and to stay on post
until you are properly relieved.” Under “Grounds for Possible Disciplinary Action,” No. 16 states:
“Falsifying…official documents or records…”
JD(NY)–21–14
6
again, this time from 7:00 to 7:06 while he was out of the office. Because of this alteration, he
decided that pursuant to the rules referred to supra in the Handbook and the Manual, he should
be terminated. On March 20, Stacy wrote to Ferritto changing his recommendation from a
suspension to a termination, stating:
5
Although PSO Cifarelli states that it was only a mistake that he wrote in 12-hours for the
day, he intentionally overwrote the 0706, which was originally entered, with 0700. This
was an attempt by him to alter the fact that he arrived late for duty. It is apparent that he
did not believe that he would get caught and that the 139 and 1103 would not be verified
for accuracy. The matter here is not that PSO Cifarelli was six minutes late for duty, but 10
that he tried to hide it by overwriting the original entry and writing that he completed 12
hours. PSO Cifarelli also attempted to cover his tracks on the 18th of March 2013 when
he intentionally traced over every entry on the original 139 when he walked into my
office, when I stepped out, and marked up the form; he even tried to change the time
back to 0706. These actions are gross violations of company and Government policy.15
By letter dated April 9, Ferritto informed Cifarelli that effective immediately his employment was
being terminated for the falsification of government documents, specifically the Form 139, and
was informed that it was a violation of Major Rule 9 of the Handbook and Section 2.5 of the
Manual. 20
C. Grievances and Requests for Information; Mendez, Daley, Cifarelli and Carlevitch
After Mestas learned that Mendez and Daley had been suspended, he filed a grievance
with Stacy dated March 17 objecting to the suspensions. On the following day, Stacy responded 25
stating: “As there is no CBA between the two parties, there is no grievance process.” On March
28 Mestas filed a grievance with Stacy regarding Cifarelli’s discharge; on the same day, Stacy
again replied that as there is no contract, there is no grievance procedure.
By letter to Stacy dated April 9, Mestas requested the following information regarding 30
Cifarelli:
Any and all reports, emails or correspondence from FPS used in the investigation.
The 139 for the time, date, and location in question, to include any variants sent to FPS.35
The tardiness records of all bargaining unit employees over the past five months.
The names of all employees disciplined for tardiness within the past five months, dates
and descriptions of each discipline, and the amount of tardiness that led to each 40
discipline.
Mestas testified that he needed this information to assist him in filing a grievance regarding
Cifarelli’s discharge. By email dated April 12, Stacy responded as follows:
45
With respect to request number one, please see PSPO Cifarelli’s statement attached.
With respect to request number two, you will have to file a Freedom of Information Act
(FOISA) from the FPS to obtain the requested information.
50
With respect to request number three, the Form 139 is a Federal Government document
and you will have to file a FOIA request for the documentation.
JD(NY)–21–14
7
With respect to request number four, PSO Cifarelli was not terminated for tardiness.
Rather, he was terminated for altering a Form 139. Therefore, your request is not
considered as relevant, and therefore denied.
5
With respect to request number five, please refer to my response to request number
four.
Mestas received all the information that he requested on April 9 on September 17.
10
Stacy testified that he discussed Cifarelli’s termination with Mestas after Cifarelli was
terminated, but at that meeting Mestas did not ask him to reinstate Cifarelli, and during the
negotiations for the initial contract, beginning in December 2012, the Union never brought up
the subject of the suspensions and terminations.
15
On April 9, Mestas sent an email to Stacy requesting the following information regarding
employee John Carlovitch, who apparently had been discharged shortly prior to this email:
The personnel file of John Carlevitch.
20
The entire file of the company’s investigation into this matter.
All correspondence between FPS and the company in regards to this matter.
The 1103 and 139 for the day in question, and25
The names of all employees who have been charged with committing the same
infraction and the outcome of those alleged violations.
Stacy responded on the following day that he would have to discuss the request with 30
Respondent’s Director of Labor Relations in order to determine the proper procedure to be
employed. On June 16, Mestas repeated his request for this information, and on June 17, Stacy
responded that he has been told what he can give to Mestas, and invited Mestas to come to his
office to pick up the information. Mestas testified that when he went to Stacy’s office he did not
receive all the documents that he had requested, and did not receive them until September 17. 35
III. Analysis
Stacy credibly testified that he initially notified the supervisors to distribute the DRAs to
all employees, including the bargaining unit employees, but was subsequently notified by the 40
Respondent’s HR Department that the bargaining unit employees were not to be asked to sign
these forms. He then instructed the supervisors to stop distributing them to the unit employees.
After that, only non-unit employees were asked to sign these forms. As the DRAs were a term
and condition of employment for the unit employees, Respondent was obligated to negotiate
with the Union, the employees’ collective bargaining representative, about them. Rather than 45
doing that, the Respondent solicited the employees directly to sign these forms. In Passavant
Memorial Area Hospital, 237 NLRB 138 (1978), the Board stated that under certain
circumstances an employer may relieve itself of liability for unlawful conduct by repudiating that
conduct. However, in order to be effective, the repudiation must be timely, unambiguous,
specific in nature to the coercive conduct, free from other proscribed illegal conduct and there 50
must be an adequate publication of the repudiation to the employees involved. As the
bargaining unit employees were never told that they were not required to sign the DRAs, the
JD(NY)–21–14
8
requirements of Passavant were not satisfied, and the request that the employees sign these
forms violates Section 8(a)(5)(1) of the Act. Kaiser Permanente, 248 NLRB 147 (1980).
Respondent’s brief defends that since some of the individuals who signed the DRAs were
applicants for employment, rather than employees, there is no violation herein. Although it is
true that some of the individuals who were asked to sign had not yet begun working for the 5
Respondent, the Board has long found that applicants for employment are employees within the
meaning of the Act. HVAC Mechanical Services, Inc., 333 NLRB 206 (2001); Massey Energy
Company, 354 NLRB No. 83 (2009).
The principal portion of this case relates to what is an employer’s obligation to a union 10
representing certain of its employees after the union has been recognized or certified, by prior to
the parties entering into a collective bargaining agreement. In the situation herein, the
Respondent suspended or disciplined nine of its unit employees between about February 25
and May 31, after the Union had been recognized, but before the parties had entered into their
initial collective bargaining agreement, without prior bargaining with, or notice to, the Union. The 15
Board was presented with this issue recently in Alan Ritchey, Inc., 359 NLRB No. 40 (2012)
where it held that discretionary discipline is a mandatory subject of bargaining and employers
may not impose certain kinds of discipline unilaterally in those situations. More specifically, the
Board stated:
20
We now conclude that…an employer must provide its employees’ bargaining
representative notice and the opportunity to bargain in good faith before exercising its
discretion to impose certain discipline on individual employees, absent a binding
agreement with the union providing for a process, such as a grievance-arbitration
system, to resolve such disputes.25
Where an employer’s disciplinary system is fixed as to the broad standards for
determining whether a violation has occurred, but discretionary as to whether or what
type of discipline will be imposed in particular circumstances, we hold that an employer
must maintain the fixed aspects of the discipline system and bargain with the union over 30
the discretionary aspects (if any), e.g., whether to impose discipline in individual cases
and, if so, the type of discipline to impose. The duty to bargain is triggered before a
suspension, demotion, discharge, or analogous sanction is imposed, but after imposition
for lesser sanctions, such as oral or written warnings.
35
For example, in a workplace where the employer has an established practice of
disciplining employees for absenteeism, the decision to impose discipline for such
conduct will not give rise to an obligation to bargain over whether absenteeism is
generally an appropriate grounds for discipline. Instead, bargaining will be limited to the
specific case at hand: e.g., whether the employee was actually absent and merited 40
discipline under the established practice. Similarly, if the employer consistently suspends
employees for absenteeism, but the length of the suspension is discretionary, bargaining
will be limited to that issue…
Mendez and Daley were suspended on March 4, when they failed a “covert penetration 45
test” by failing to identify an explosive device and allowed an individual to walk unescorted
through a “safe zone.” As an unusual offense such as this could not have had a fixed penalty
attached to it, the prescribed penalty must have involved the exercise of discretion. In addition,
Stacy’s recommendations regarding their punishment was rejected, further supporting a finding
that there was no “fixed” punishment for their offense. Therefore, pursuant to Alan Ritchey, 50
supra, prior notification to the Union is required. As the Respondent did not notify the Union of
the suspension of Mendez and Daley prior to the suspensions, it violated Section 8(a)(5)(1) of
JD(NY)–21–14
9
the Act. The Complaint also alleges that the Respondent refused to meet with the Union with
respect to the grievance that Mestas filed regarding the suspensions of Mendez and Daley.
Mestas sent the grievance to Stacy on March 17 with a note stating that Stacy should contact
him if he had any questions or concerns about the grievance. Stacy’s email to Mestas dated
March 18, states that the grievance would not be accepted, as there was no contract and, 5
therefore, no grievance procedure. In Storall Manufacturing Company, Inc., 275 NLRB 2230,
221 (1985), the Board stated:
It is well settled that grievances relating to terms and conditions of employment,
including disciplinary actions taken against employees, are proper subjects of collective 10
bargaining…an employer is obligated to discuss and process such grievances with the
union in a sincere effort to reach resolution. The absence of a collective bargaining
agreement incorporating a grievance procedure does not relieve an employer of this
obligation.
15
By refusing to accept or discuss Mendez and Daley’s grievance due to the lack of a contract,
the Respondent violated Section 8(a)(5)(1) of the Act.
The alleged infractions by Durand-Gonzales and Weider were also of such an unusual
nature that the suspensions, of necessity, had to require the use of discretion on the part of the 20
Respondent. Durand-Gonzales’ violations were that he didn’t raise the flag, didn’t make required
checks and had a visitor at lunch. Stacy recommended a three day suspension, but asked for
guidance as to whether that request was too strong or too weak. Ferritto said that he should be
suspended indefinitely because of prior violations. The nature of the violations, together with the
interaction between Stacy and Ferritto, establishes the uncertainty of the punishment for these 25
infractions, and clearly shows that discretion was required. As the Union was not notified of the
suspension, it violates Section 8(a)(5)(1) of the Act. Weider was suspended because he
“sprayed a defenseless raccoon with no provocation other than meanness.” Clearly, there could
be no fixed penalty for spraying a defenseless raccoon. As the Union was not properly notified
of this suspension, it too violates Section 8(a)(5)(1) of the Act. 30
On April 30, Supervisor Young completed a Suspension Request Form for Douglas
stating that on April 29 he arrived for work on time, but without his weapon. He went home and
returned to his post at 9:20. Stacy requested a twenty four hour suspension for Douglas, which
was approved and Douglas received a twenty four hour suspension, rather than a three day 35
suspension. The difference may be explained by the fact that he arrived for work on time, but
without his weapon. As he was suspended without prior notice to the Union, and discretion was
clearly exercised in determining the length of his suspension, I find that it violated Section
8(a)(5)(1) of the Act. By email dated February 25, Scott Milne wrote to Stacy: “Please see
attached requests” which included a suspension request for Favell. This request was approved 40
and Favell was suspended for three days for an open post violation. By email dated April 24 to
Ferritto regarding Strong, Stacy wrote: “Here is a suspension request for an open post today,
Please see attachment.” Ferritto responded, “Approved,” and Strong was given a three day
suspension. Stacy testified that he relied upon the Employee Handbook in determining that
Open Post violations warranted a three day suspension. He also testified that while Open Post 45
violators in December 2012 were given counseling, due to the large number of subsequent
violations, a decision was made to change the penalty to a three day suspension and, after that,
all Open Post violations were disciplined with a three day suspension. As the Open Post penalty
were fixed, rather than discretionary, I find that the three day suspensions of Favell and Strong,
without prior notice to the Union, did not violate the Act, but that the Respondent must bargain 50
with the Union over whether they were late arriving for work, creating the open post violation.
JD(NY)–21–14
10
The remaining disciplinary allegations relate to the terminations of Robles and Cifarelli.
Robles was terminated on April 16 for arriving late for work on April 3 and creating an open
post, and for falsifying the Form 139 to state that he arrived for work on time. Cifarelli was also
discharged for falsifying Form 139, but on two occasions; allegedly, he initially falsified the time
sheet to show that he arrived for work on time on March 11, at 7:00, rather than 7:06, and 5
subsequently, while alone in Stacy’s office, changed it back again to 7:06. Both the Handbook
and the Manual refer to falsification of official documents. The Handbook states that it is
punishable by “discharge, if warranted, after unpaid suspension,” and the Manual states that it
“comprises grounds for possible disciplinary action, up to and including permanent removal from
any FPS security guard service contract.” It appears to me that discretion is not needed when a 10
guard is accused of falsifying official documents, as is alleged here, and that the Respondent
did not violate the Act by terminating Robles and Cifarelli for these actions; however, it must
bargain with the Union about whether they were actually guilty of these violations. When Mestas
filed a grievance regarding the discharge of Cifarelli, it was rejected by Stacy for the same
reason that he rejected the grievances of Mendez and Daley, that there was no contract. For the 15
reason stated above, the rejection of this grievance also violates Section 8(a)(5)(1) of the Act.
The remaining allegations relate to the delay in Respondent furnishing the Union with
the information that it requested regarding Cifarelli and Carlevitch. Mestas filed his information
request regarding Cifarelli on April 9. The final two requests involved tardiness, and Stacy 20
correctly responded that as Cifarelli was not discharged for tardiness, these items were not
relevant to the Union. However, the other requests were relevant and should easily have been
obtainable by the Respondent. Mestas did not receive all the information that he requested until
September 17. Mestas also requested certain information from Stacy regarding Carlevitch on
April 9. Five specific areas of information were requested, and were not fully provided until 25
September 17. The law is clear that an employer is obligated to furnish the union with requested
information in a timely manner, and this obligation “cannot be defined in terms of a per se rule.
What is required is a reasonable good faith effort to respond to the request as promptly as
circumstances allow.” Good Life Beverage Co., 312 NLRB 1060, 1062, fn. 9 (1993). In
evaluating the promptness of the response, “the Board will consider the complexity and extent 30
of information sought, its availability and the difficulty in retrieving the information.” Samaritan
Medical Center, 319 NLRB 392, 398 (1995). Neither information request was particularly
complex. The three relevant portion of the Cifarelli request could have been compiled easily
within a day. While the Carlevitch request was more complex, there was no valid reason why it
should have required the Respondent almost six months to comply. I therefore find that by 35
delaying the turnover of this information, the Respondent violated Section 8(a)(5)(1) of the Act.
Conclusions of Law
1. Respondent has been an employer engaged in commerce within the meaning of 40
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
45
3. The Respondent violated Section 8(a)(5)(1) of the Act by requesting that employees
sign Dispute Resolution Agreements, thereby bypassing the Union, their collective bargaining
representative.
4. The Respondent violated Section 8(a)(5)(1) of the Act by disciplining five employees, 50
between February 25, 2013 and May 31, 2013 without affording the Union an opportunity to
bargain about this conduct or with respect to the effects of the conduct.
JD(NY)–21–14
11
5. The Respondent violated Section 8(a)(5)(1) of the Act by refusing to accept and
discuss grievances filed by the Union.
6. The Respondent violated Section 8(a)(5)(1) of the Act by responding to the Union’s 5
information requests in an untimely manner.
7. The Respondent did not violate the Act by suspending Favell and Strong for three
days and for discharging Robles and Cifarelli, as no discretion was employed in these
disciplinary actions.10
The Remedy
Having found that the Respondent has failed and refused to notify and bargain with the
Union regarding the discipline of bargaining unit employees, pursuant to the Board’s Decision in 15
Alan Richey, I shall recommend that the Respondent notify and bargain with the Union
regarding the discipline of bargaining unit employees where discretion was involved in
determining the discipline. Where discretion was not employed, Respondent must bargain with
the Union as to whether the employees were actually guilty of the offense. Respondent will
further be ordered to bargain in good faith with the Union regarding grievances that it files, and 20
to respond in a timely manner to the Union’s requests for information. As Mendez, Daley,
Durand-Gonzales, Weider and Douglas were each suspended without notification to, or
bargaining with, the Union, I recommend that the Respondent be ordered to make them whole
for the loss that they suffered as a result of the suspensions.
25
Upon these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
ORDER
30
The Respondent, Paragon Systems, Inc., its officers, agents, successors and assigns,
shall
1. Cease and desist from
35
(a) Requesting that employees sign Dispute Resolution Agreements, thereby bypassing
the Union, their collective bargaining representative.
(b) Disciplining employees without affording the Union an opportunity to bargain about
this conduct or with respect to the effects of the conduct. 40
(c) Refusing to accept and discuss grievances filed by the Union.
(d) Responding to the Union’s information requests in an untimely manner.
45

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–21–14
12
(e) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
5
(a) Notify its employees that they are not required to sign the Dispute Resolution
Agreement.
(b) Notify and bargain with the Union regarding the discipline of employees where
discretion was exercised in the determination of discipline, and bargain with the Union over 10
whether the employees had actually committed the offense involved, when discretion was not
employed.
(c) Discuss and bargain in good faith with the Union about grievances that it files.
15
(d) Upon receipt of information requests from the Union that are necessary for, and
relevant to the Union as the collective bargaining representative of certain of its employees,
provide the Union with the information in a reasonable and timely manner.
(e) Make whole Donald Mendez, Kevin Daley, Joshua Weider, Duane Douglas and 20
Anthony Durand-Gonzales for any loss that they suffered as a result of their suspensions on
about March 4, March 16, April 29 and May 31.
(f) Within 14 days after service by the Region, post at each of its facility in Florida, copies
of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the 25
Regional Director for Region 12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 30
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 25, 2013.
35
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. May 15, 201440
_______________________________
Joel P. Biblowitz
Administrative Law Judge

7 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–21–14

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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT ask our employees to sign Dispute Resolution Agreements, thereby bypassing
the Union, their collective bargaining representative.
WE WILL NOT discipline employees without affording the Union an opportunity to bargain about
this conduct or with respect to the effects of the conduct.
WE WILL NOT refuse to accept and discuss grievances filed by the Union and WE WILL NOT
fail to respond to the Union’s information requests in a timely manner.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL notify employees that they are not required to sign the Dispute Resolution
Agreement.
WE WILL notify and bargain with the Union regarding the discipline of employees where
discretion was exercised in the determination of discipline, and bargain with the Union over
whether the employees had actually committed the offense involved, when discretion was not
exercised and WE WILL make whole Donald Mendez, Kevin Daley, Joshua Weider, Duane
Douglas and Anthony Durand-Gonzales for any loss that they suffered as a result of their
suspensions on about March 4, March 16, April 29 and May 31.
WE WILL discuss and bargain in good faith with the Union about grievances that it files and WE
WILL, upon receipt of information requests from the Union that are necessary for, and relevant
to the Union as the collective bargaining representative of certain of its employees, provide the
Union with the information in a reasonable and timely manner.
Paragon Systems, Inc.
(Employer)
Dated___________ By________________________________________________
(Representative) (Title)
JD(NY)–21–14
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
201 East Kennedy Boulevard, South Trust Plaza, Suite 530
Tampa, Florida 33602-5824
813-228-2641, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/12-CA-105275 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 813-228-2662.