Akima Global Services, Inc.

372 NLRB No. 14 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. Akima Global Services, Inc. and United Government Security Officers of America International Union and its Local 823, Petitioner and International Union, Security, Police and Fire Professionals of America (SPFPA) and its Local No. 830, Interve- nor. Case 28–RC–285574 November 29, 2022 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND PROUTY To the extent that the Petitioner asks the Board to re- scind the Regional Director’s Order scheduling a hearing for March 2, 2022, regarding certain objections to an elec- tion, its request is denied as moot, based on the Regional Director’s subsequent orders postponing the hearing in- definitely and then consolidating the instant representation case with the unfair labor practice charge in Case 28–CA– 268777 for hearing before an administrative law judge. The request for review is otherwise denied as it raises no substantial issues warranting review.1 Dated, Washington, D.C. November 29, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER RING, concurring. The employees in this unit voted overwhelmingly to se- lect the Petitioner as their collective-bargaining repre- sentative in a Board-conducted election early in 2022 and to thereby oust the Intervenor, which has represented the unit since 2010. The Intervenor filed objections to the election, all of which are based on allegations in Case 28– CA–268777 that the Employer committed unfair labor 1 The issues before the Board in this proceeding are limited to the procedural arguments identified in the Petitioner’s request for review. As to our concurring colleague’s concerns about case-processing delays, we agree that delays in the processing of unfair labor practice charges practices in October 2020. Although the Intervenor filed the unfair labor practice charge in that case on November 9, 2020, the Region had not made any determination on it as of the date the election was held 14 months later. Fol- lowing a series of unsuccessful efforts to address the ob- jections as part of the representation case, the Regional Director issued a complaint in Case 28–CA–268777 on April 12, 2022. Although the complaint covered the same conduct that was the subject of the Intervenor’s objec- tions, the objections were not consolidated with the unfair labor practice case until July 14, 2022. The hearing in the consolidated case is scheduled to start on December 12, 2022, 2 years from the date of the alleged conduct at issue in the unfair labor practice case. Meanwhile, until a final disposition is reached in the consolidated case, the unit employees continue to be denied the union that they deci- sively selected and remain saddled with a union that they decisively voted to reject. If past is prologue, they will be waiting for a very long time. It is hard to look at the facts of this case and come to any other conclusion than that they have been denied their right to choose their own rep- resentative. My colleagues deny review of the Regional Director’s decision to process the election objections notwithstand- ing the fact that they allege unfair labor practices that were pending at the region long before the petition was filed without any merit determination until well after the elec- tion was held. While I must concur with this disposition, I am deeply troubled by the delays in this case and the part actions by this agency have played in that delay. Fairness to the parties, and most importantly, to the employees, de- mands that these problems be acknowledged. Facts Beginning in 2010, the Intervenor has represented a unit of security officers employed by Asset Protection & Secu- rity Services, LP and Ahtna Technical Services, Inc. (col- lectively, “Asset Protection”) that provided security ser- vices under contract to Immigration and Customs En- forcement (ICE) at its Florence, Arizona detention facil- ity. In early 2020, ICE awarded the contract to the Em- ployer, which thereafter hired most of the unit security of- ficers and recognized the Intervenor as the representative of the unit employees. The Employer declined, however, to assume the existing collective-bargaining agreement between Asset Protection and the Intervenor. On November 9, 2020, the Intervenor filed an unfair la- bor practice charge in Case 28–CA–268777, alleging that, raise concerns about the vindication of statutory rights, and we also note that the consolidated hearing in this case, scheduled to begin on Decem- ber 12, 2022, will facilitate moving this case towards resolution. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 in October 2020, the Employer violated Section 8(a)(5), (3), and (1) by not hiring about 12 security officers who had previously been employed by Asset Protection. Not- withstanding the charge, the Employer promptly bar- gained with the Intervenor and, on November 28, 2020, the parties executed an initial 13-month contract effective through December 31, 2021. On September 20, 2021, the Intervenor and the Employer consummated a new 3-year collective-bargaining agreement effective from October 1, 2021 through December 31, 2024. Throughout this pe- riod, the region took no action on the pending unfair labor practice charge. The Petitioner filed a petition to represent the Florence unit on October 26, 2021. Prior to the election, the Inter- venor argued that the parties’ 2021–2024 collective-bar- gaining agreement barred the petition under the Board’s contract bar doctrine, but the Regional Director rejected this claim and the Board subsequently denied review. No- tably, the Intervenor did not assert at that time that the election should not be held based on the conduct alleged in Case 28–CA–268777. The election was conducted by mail ballot from January 19 through February 2, 2022, and the tally of ballots showed 72 votes for the Petitioner, 14 votes for the Inter- venor, and one vote for no labor organization. On Febru- ary 15, 2022, the Intervenor filed election objections based entirely on the conduct alleged in Case 28–CA–268777. That was the first time that the Intervenor averred that the allegations in its unfair labor practice charge should be considered in this representation proceeding. On February 16, 2022, the Regional Director notified the parties that, if he subsequently found that the Interve- nor’s offer of proof in support of its objections could war- rant setting aside the election, an objections hearing would be held on February 23, 2022. On February 18, 2022, the Regional Director rescheduled the hearing for March 2, 2022, without any finding that the objections alleged con- duct sufficient to warrant overturning the election. 2 I concur with my colleagues’ denial of review of the Regional Di- rector’s disposition of the issues presented by the request for review. While it is true that unfair labor practice issues may not be litigated in representation cases, the Regional Director’s subsequent orders make clear that he does not intend to do so. And a party’s failure to raise before the election claims that prepetition unfair labor practices preclude a fair election from being held does not preclude it from raising the issue in timely postelection objections. See Stephens Media Group—Massena, LLC, Case 03–RC–288556 (2022) (unpublished). 3 The merits of the election objections are not before the Board now and I express no opinion with respect to them. However, the substance of the objections is that the Employer’s allegedly unlawful failure to hire 12 former Asset Protection employees altered the composition of the vot- ing unit and influenced the employees who voted in the election. As to the former, alleged discriminatees are permitted to vote under challenge. On February 22, 2022, the Intervenor moved to adjourn the March 2 hearing, noting that an objections hearing was not a proper forum for trying unfair labor practice claims. The next day, the Petitioner filed this request for review of the Regional Director’s February 16 and 18 directives on two grounds. First, agreeing with the Intervenor, the Petitioner asserted that the March 2 hearing should be postponed indefinitely because the Intervenor’s unfair la- bor practice charge could not properly be litigated in an objections hearing. Second, the Petitioner contended that the Intervenor’s unfair labor practice allegations were ef- fectively an attempt to “block” the election based on the conduct alleged in Case 28–CA–268777 and that it waived any right to do so by failing to raise the issue prior to the election.2 On March 1, 2022, the Regional Director postponed the March 2 hearing “to a later date to be determined pending my determination as to whether the objections should be addressed concurrently with any unfair labor practices that may be found to be subject to complaint in 28–CA– 268777.” The March 1 order also found, without any ex- planation, that the Intervenor’s offer of proof, if substan- tiated, could justify overturning the election. 3 On April 12, 2022, the Regional Director issued a com- plaint in Case 28–CA–268777. On July 14, 2022, the Re- gional Director issued an order consolidating the represen- tation and unfair labor practice cases for hearing before an Administrative Law Judge. That hearing is scheduled to start on December 12, 2022. Discussion Section 9(c) of the Act provides that the Board ‘‘shall direct an election by secret ballot’’ if the Board finds that a question of representation exists. The Supreme Court has explained that “[i]n carrying out this task” of deter- mining employees’ desires regarding representation, “the Board must act so as to give effect to the principle of ma- jority rule set forth in [Section] 9(a), a rule that ‘is sanc- tioned by our governmental practices, by business proce- dure, and by the whole philosophy of democratic Grand Lodge Int’l Association of Machinists, 159 NLRB 137, 143 (1966); Tetrad Co., 122 NLRB 203 (1959). The Intervenor was well aware of the alleged discriminatees’ identity and the date of the election and has to date offered no explanation for its failure to pursue that option. In light of the election results, moreover, their votes would not have been determinative even if they had all cast ballots in favor of the Intervenor. As to the latter, finding merit to the objection would require the Board to conclude that these unfair labor practices affected the unit despite the significant passage of time and the execution of not one but two collec- tive-bargaining agreements during the intervening period. In these cir- cumstances, the parties would have been better served if the March 1 order had explained the basis for the Regional Director’s determination that the objections alleged conduct that, if proven, could warrant setting aside the election. AKIMA GLOBAL SERVICES, INC. 3 institutions,’” and “[i]t is within this democratic frame- work that the Board must adopt policies and promulgate rules and regulations in order that employees’ votes may be recorded accurately, efficiently and speedily.”4 Contrary to the Supreme Court’s directive, the Board’s former blocking-charge policy allowed incumbent unions to delay decertification elections for months and years, and even to block them entirely. As the Board explained in the Election Protection Rule, the blocking-charge pol- icy resulted in long delays in processing employee-filed decertification petitions in a significant number of cases.5 Many circuit courts also criticized the blocking-charge policy for being too open to abuse and manipulation by incumbent unions seeking to avoid a challenge to their representative status.6 Because this case was processed under the Election Pro- tection Rule, the charge in Case 28–CA–268777 could not and did not prevent the election from being held. But the disposition of the question concerning representation pre- sented in this case has been unduly delayed all the same. First, the region regrettably failed to act on the charge in Case 28–CA–68777 for an extended period of time de- spite its significance to the parties’ relationship. Among other things, the complaint alleges that the Employer was a “perfectly clear” successor to Asset Protection. If proven, this means that the Employer would have acted unlawfully by setting initial terms of employment.7 The parties would have been better served had they been aware of the region’s position before they expended significant time and resources negotiating two successive collective- bargaining agreements. Second, although the pending charge in Case 28–CA– 268777 was specifically mentioned at the preelection hearing, no action was taken on it during the period be- tween the filing of the petition and the date of the election. Had such action been taken, the parties and employees all would have been on notice of the possible effect of the allegations in the charge, if any, on the election. Third, the delay continued after the election, with more than two months elapsing after the election before the complaint issued and a further three-month delay in con- solidating the representation and unfair labor practice cases. In sum, there is no indication that Case 28–CA– 4 NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (quoting S. Rep. No. 74–573, at 13). 5 See, e.g., Cablevision Systems Corp., 367 NLRB No. 59 (2018). See also Apple Bus Co., Case 19–RD–216636, 2019 WL 7584368 (Nov. 18, 2019); ADT Security Services, No. 18–RD–206831, 2017 WL 6554381 (Dec. 20, 2017); Arizona Public Service Co., No. 28–RD– 194724, 2017 WL 2794208 (June 27, 2017); Pinnacle Foods Group, LLC No. 14–RD–226626, 2019 WL 656304 (Feb. 2, 2019). 6 See Geodis Logistics, LLC, 371 NLRB No. 102, slip op. at 6 fn. 9 (2022) (Member Ring, concurring) and cases cited therein. 268777 has been processed to date with the urgency one might expect for unfair labor practices that involve not only an alleged loss of employment but allegations that, if proven, would fundamentally affect the nature of the bar- gaining relationship between the Employer and the Inter- venor. And it bears emphasis that the delays to date are only the beginning. While Case 28–CA–268777 has now been scheduled for a hearing beginning in December, that con- solidated case must be processed to a final disposition be- fore further action is taken in the representation case. If the progress of the case to date is any guide, that day will be a long time coming. Unbeknownst to the unit employ- ees, any petition filed at any time since October 2020 would have been futile, in light of the regional determina- tion that the charges in Case 28-CA-268777 had merit. The employees in this unit have thus been powerless to reject their bargaining representative at any time in the past two years and will remain powerless to do so for years to come as well. Moreover, those delays were accompanied by an erro- neous scheduling of the representation case hearing, the scheduling of a hearing prior to any determination that the conduct alleged in the objections, if proven, could warrant setting aside the election, and the failure to explain why the conduct alleged in the objections, if proven, could war- rant setting aside the election. While I do not question the Region’s good faith, it is easy to see why unit employees might well wonder why their Section 7 right freely to se- lect, reject, or change their bargaining representative has been given so little consideration. Because the Board’s Election Protection Rule was in place, the election has at least been held in a timely man- ner and can be given effect depending on the outcome of the pending proceedings. Under the former blocking charge doctrine, in contrast, the petition likely would have been blocked and the employees would still be at square one. As this case illustrates, however, election proceed- ings remain subject to unjustifiable delay notwithstanding the Board’s Election Protection Rule.8 Because of those delays, the Act’s guarantee that they have a right to refrain from supporting a union is little more than an illusion for the employees in this case. 7 See NLRB v. Burns International Security Services, 406 U.S. 272, 294–295 (1972) (“there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the em- ployees’ bargaining representative before he fixes terms.”). 8 See also Rieth-Riley Construction Co., 371 NLRB No. 109 (2022) (Election Protection Rule did not eliminate merit-determination dismis- sals; 21-month delay due to concurrent unfair labor practice case). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Accordingly, I respectfully concur. Dated, Washington, D.C. November 29, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD