Superior Protection, Inc.

SUPERIOR PROTECTION INC. 267 Superior Protection Inc. and United Government Se- curity Officers of America–Local 229. Case 16– CA–23210 February 25, 2004 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on November 5, 2003, the General Counsel issued the complaint on November 19, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to furnish information following the Un- ion’s certification in Case 16–RC–10361. (Official no- tice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, and a first amended answer, admitting in part and denying in part the allegations in the complaint. On January 5, 2004, the General Counsel filed a Mo- tion for Summary Judgment. On January 12, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On February 2, the Respondent filed a re- sponse, and on February 10, the General Counsel filed a reply thereto. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish information, but contests the validity of the certi- fication based on its contentions in the representation proceeding that: (1) the petitioned-for unit covering all of its security officers assigned to work at General Services Administration (GSA) contract facilities in three Texas counties is inappropriate, and the unit should be limited to security officers assigned to GSA contract facilities in Harris County (Houston and Pasadena); and (2) em- ployee Kelvin Trotter is not an eligible voter because he was discharged prior to the election. In addition, the Respondent contends that the Regional Director improp- erly directed a mail ballot election, and that the Region failed to send mail ballots to eligible voters and to count mail ballots cast by eligible voters. Finally, the Respon- dent asserts that, in May 2002, after the representation case was litigated, it entered into a separate contract with GSA to provide guard services at eight additional facili- ties located within the geographic scope of the certified unit, and that the employees at these facilities would ef- fectively be accreted to the unit pursuant to the Board’s bargaining order in this case. The Respondent asserts that this raises a question regarding the appropriateness of the unit because the employees at these additional facilities, who were employed by the previous contractor, outnumber the unit employees at the facilities existing at the time of the election, 42 to 29, and it is well- established Board policy that a larger unit may not be accreted into a smaller unit without an election. We find that the Respondent has not raised any repre- sentation issue warranting a hearing in this proceeding. The Respondent’s contentions that the three-county unit is inappropriate and that Trotter is not an eligible voter were fully litigated and addressed by the Board in the preelection proceeding and the consolidated unfair labor practice/challenged ballot proceeding, respectively.1 The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require us to reexamine the Board’s findings on those issues. With respect to Respondent’s contention that the Re- gional Director improperly directed a mail-ballot elec- tion, the Respondent never requested the Board in the representation proceeding to review the Regional Direc- tor’s decision to conduct the election by mail. Although the Respondent mentioned in its request for review of the Regional Director’s Decision and Direction of Election that it opposed the decision to hold a mail ballot election, it did so only in support of its contention that the peti- tioned-for three-county unit is inappropriate; that is, the Respondent claimed that the Regional Director’s analysis on the mail ballot issue supported the Respondent’s posi- tion on the scope-of-unit issue. The Respondent did not request the Board to overturn the Regional Director’s direction of a mail ballot election. The Respondent, therefore, is precluded under Section 102.67(f) of the Board’s Rules from raising the issue in this proceeding. See Ritz-Carlton Hotel Co., 321 NLRB 659 fn. 1 (1996), enfd. 123 F.3d 760 (3d Cir. 1997). For similar reasons, the Respondent is also precluded from raising an issue in this proceeding about the manner 1 By unpublished Order dated October 16, 2001, the Board (Chair- man Hurtgen and Members Liebman and Walsh) denied the Respon- dent’s request for review of the Regional Director’s Decision and Di- rection of Election, which found that the petitioned-for unit is appropri- ate. Thereafter, in a published decision dated July 31, 2003 (339 NLRB 954 (2003)), the Board (Members Schaumber, Walsh, and Acosta) adopted the administrative law judge’s decision in the consoli- dated unfair labor practice/challenged ballot proceeding finding, inter alia, that the Respondent’s discharge of Trotter was unlawful and that his ballot should therefore be opened and counted. 341 NLRB No. 35 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268 in which the Region conducted the mail ballot election. Although the Respondent raised this issue in the consoli- dated unfair labor practice/challenged ballot proceeding, it failed to do so in timely filed objections as required by Section 102.69 of the Board’s Rules. The administrative law judge, therefore, refused to allow the Respondent to litigate the issue, since it was not relevant to Trotter’s eligibility, the only issue that the Respondent did timely raise. See 339 NLRB 954 fn. 2 (2003). The Board af- firmed the judge’s ruling and the Respondent does not offer to produce any newly discovered and previously unavailable evidence or allege that there are special cir- cumstances that would require us to reconsider that rul- ing in this proceeding. See Sundor Brands, Inc., 325 NLRB 499 (1998); Bishop Mugavero Center for Geriat- ric Care, 323 NLRB 642 (1997) (employer’s failure to file timely objections to the conduct of the election pre- cludes it from raising the issue in the subsequent refusal- to-bargain proceeding absent newly discovered and pre- viously unavailable evidence). Finally, we also find that no issue warranting a hearing is raised by the Respondent’s contention that the certified unit is no longer appropriate because the employees at the eight additional GSA facilities it now services within the geographic scope of the unit would necessarily be accreted to the smaller group of employees who work at the GSA facilities it serviced at the time of the election. As an initial matter, there is no indication that the Union is seeking to accrete the employees at the additional fa- cilities into the unit. On the contrary, as the Employer acknowledges, the Union filed a petition on January 13, 2003 (Case 16–RC–10480), seeking to represent the em- ployees at those facilities in a separate unit.2 Further, contrary to the Respondent’s contention, the employees at the additional facilities would not necessar- ily be accreted into the unit pursuant to the Board’s bar- gaining order. Although the unit description on its face includes all security officers assigned to GSA contract facilities located in the three-county area, “the Board does not automatically accrete employees at a new [facil- ity] solely because the unit description includes all the employer’s [facilities], present and future, in a geo- graphic area.” Coca-Cola Bottling Co. of Wisconsin, 310 NLRB 844 (1993). As the Respondent itself argues, ac- cretion would be inappropriate if the employees at the additional facilities numerically overshadow the employ- ees at the facilities that existed at the time of the election. See, e.g., Gould, Inc., 263 NLRB 442, 445 (1982). Ac- cretion would also be improper if, as the Union appears 2 The Region held the Union’s petition in abeyance pending the Board’s resolution of the underlying representation case here. to assert in its January 13, 2003 petition in Case 16–RC– 10480, the employees at the additional facilities would constitute a separate appropriate unit. See, e.g., Ready Mix USA, Inc., 340 NLRB No. 107, slip op. at 8–9 (2003); Passavant Retirement & Health Center, 313 NLRB 1216, 1218 (1994); and Houston Division, 219 NLRB 388 (1975). The Respondent does not address this unit question.3 Finally, the Respondent does not contend that the two groups of employees have been merged or consolidated, thereby completely obscuring their separate identity. Cf. Renaissance Center Partnership, 239 NLRB 1247 (1979) (Board processed employer’s RM petition, even though it was filed during the certification year, where the certified group of security personnel at the Renais- sance Center had been consolidated and intermixed with a larger, unrepresented group of security personnel at a hotel within the same commercial development, the Un- ion had filed a unit-clarification petition seeking to ac- crete the larger group into the unit, and the evidence showed that the groups were now indistinguishable and that the only appropriate unit consisted of the overall security force). Accordingly, we find that the Respondent has not raised any representation issue or special circumstances that are properly litigable in this unfair labor practice proceeding or that warrant reconsideration of the certifi- cation. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Action Automotive, Inc., 284 NLRB 251, 255–256 (1987), enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041 (1989).4 We also find that there are no genuine issues of mate- rial fact warranting a hearing regarding the Union’s re- quest for information. The complaint alleges, and the Respondent’s answer admits, that the Union requested the following information from the Respondent by letter dated September 30, 2003: 1. A list of all posts and assignments in the unit and their Federal jurisdiction (i.e. partial, proprietary, con- current, or exclusive), and the number of productive hours performed at each assignment. 3 These are issues that may properly be addressed in Case 16–RC– 10480 or some other proceeding specifically involving the representa- tional rights of the additional employees, rather than in this test-of- certification proceeding. 4 As indicated above, Member Schaumber did not participate in the Board’s October 16, 2001 Order, and Member Liebman did not partici- pate in the Board’s July 31, 2003 Decision and Order. However, Members Liebman and Schaumber agree that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision and orders in the representation proceeding. SUPERIOR PROTECTION INC. 269 2. The current list of names, addresses, and phone num- bers for all employees in Houston. As indicated above, the Respondent also admits that it refused to provide the foregoing information. Although the Respondent denies that the requested information is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining repre- sentative of the unit employees, the Respondent does so based solely on its contention that the Union was not properly certified. Moreover, it is well established that information con- cerning unit employees’ names, addresses, phone num- bers, work assignments, and hours is presumptively rele- vant for purposes of collective bargaining and must be furnished on request.5 Here, although the Union’s re- quest for the names, addresses, and phone numbers of all employees in Houston is not expressly limited to unit employees in Houston, the context suggests that the Un- ion is only seeking information concerning unit employ- ees. In any event, to the extent the Union’s information request could be construed as requesting nonunit infor- mation, this would not excuse the Respondent’s blanket refusal to comply with the request. It is well established that an employer may not simply refuse to comply with an ambiguous or overbroad information request, but must request clarification or comply with the request to the extent it encompasses necessary and relevant informa- tion.6 Accordingly, we grant the Motion for Summary Judg- ment and will order the Respondent to bargain with the Union and to furnish the Union with the information it requested relating to unit employees.7 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with an office and place of business in Houston, Texas, has been engaged in the business of providing security services for Federal agencies. During the 12-month period preceding issuance of the complaint, the Respondent provided services valued in 5 See, e.g., Stanford Hospital & Clinics, 338 NLRB 1042 (2003); MEMC Electronic Materials, Inc., 338 NLRB No. 142 (2003) (not published in bound volume); American Logistics, Inc., 328 NLRB 443 (1999), enfd. 214 F.3d 935 (7th Cir. 2000). 6 See, e.g., Streicher Mobile Fueling, Inc., 340 NLRB No. 116, slip op. at 2 (2003); Cheboygan Health Care Center, 338 NLRB 802, 803 fn. 2 (2003). 7 The Respondent’s request that the complaint be dismissed is there- fore denied. excess of $50,000 directly to customers located outside the State of Texas. We find that the Respondent 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 Certification Following the mail ballot election conducted October 15 through 29, 2001, the Union was certified on August 25, 2003,8 as the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: INCLUDED: All permanent, full-time and regular part- time security officers assigned to work at GSA contract facilities in Harris, Montgomery and Galveston coun- ties. EXCLUDED: All office clerical employees, employees on temporary assignment, professional employees, managers and supervisors as defined by the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain About September 30, 2003, the Union, by letter, re- quested the Respondent to bargain and to furnish neces- sary and relevant information, and, since about the same date, the Respondent has failed and refused to do so. We find that the Respondent’s conduct constitutes an unlaw- ful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after September 30, 2003, to bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit and to furnish the Union necessary and relevant information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. We shall also order the Respon- 8 The complaint incorrectly states that the certification issued on August 21, 2003. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270 dent to furnish the Union the information it requested relating to unit employees. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Superior Protection Inc., Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Government Secu- rity Officers of America–Local 229, as the exclusive bargaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union informa- tion that is relevant and necessary to its role as the exclu- sive bargaining representative of the unit employees. (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) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: INCLUDED: All permanent, full-time and regular part- time security officers assigned to work at GSA contract facilities in Harris, Montgomery and Galveston coun- ties. EXCLUDED: All office clerical employees, employees on temporary assignment, professional employees, managers and supervisors as defined by the Act. (b) Furnish the Union the information it requested on September 30, 2003, relating to unit employees. (c) Within 14 days after service by the Region, post at its facility in Houston, Texas, copies of the attached no- tice marked “Appendix.”9 Copies of the notice, on forms 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.” provided by the Regional Director for Region 16, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since September 30, 2003. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any 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 refuse to bargain with United Govern- ment Security Officers of America–Local 229, as the exclusive bargaining representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: SUPERIOR PROTECTION INC. 271 INCLUDED: All permanent, full-time and regular part- time security officers assigned to work at GSA contract facilities in Harris, Montgomery and Galveston coun- ties. EXCLUDED: All office clerical employees, employees on temporary assignment, professional employees, managers and supervisors as defined by the Act. WE WILL furnish the Union the information it requested on September 30, 2003, relating to unit employees. SUPERIOR PROTECTION INC.