Universal Protection Services, LLC d/b/a Allied Universal Security Services

373 NLRB No. 38 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. Universal Protection Services, LLC d/b/a Allied Uni- versal Security Services and International Un- ion, Security, Police and Fire Professionals of America. Case No. Case 12–CA–305972 March 27, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX This is a refusal-to-bargain case in which Universal Protection Services, LLC d/b/a Allied Universal Security Services (the Respondent) is contesting the Union’s cer- tification as bargaining representative in the underlying representation proceeding. Pursuant to a charge filed on October 25, 2022, by International Union, Security, Po- lice and Fire Professionals of America (the Union), the General Counsel issued a complaint on December 19, 2023, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to rec- ognize and bargain with the Union following the Union’s certification in Case 12–RC–286390. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Sections 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982)). The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On January 24, 2024, the General Counsel filed a Mo- tion for Summary Judgment. On January 31, 2024, 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 14, 2024, the Re- spondent filed a response to the Notice to Show Cause. 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 that it has refused to bargain but asserts that it has no duty to bargain and contests the validity of the Union’s certification of representative based on its contention, raised and rejected in the under- lying representation proceeding, that the bargaining unit included statutory supervisors.1 1 In its answer, the Respondent denies that the charge was filed on October 25, 2022, and that it was served with the charge. Copies of the charge and the affidavit of service are attached as Exhs. K and L to the General Counsel’s motion, and the Respondent has not contested the authenticity of those documents in its response to the Notice to Show Cause. Further, the Respondent denies par. 2(c) of the complaint, All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.2 which alleges that the Respondent is engaged in commerce within the meaning of the Act; and par. 3 of the complaint, which alleges that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. During the representation proceeding, however, the Respondent stipulated that it is engaged in commerce within the meaning of the Act, that the Union is a labor organization within the meaning of the Act, and that the Union only represents guards in the representation proceeding, and so does not raise a material issue of fact by these deni- als. See Wismettac Asian Foods, Inc., 370 NLRB No. 62, slip op. at 1 fn. 1 (2020) (later denial of fact previously stipulated to in representa- tion proceeding did “not raise any litigable issue in [test-of- certification] proceeding”); Biewer Wisconsin Sawmill, Inc., 306 NLRB 732, 732 fn. 1 (1992) (same). The Respondent denies pars. 5(a) and 5(f) of the complaint, which state that the unit is appropriate for the purposes of collective bargain- ing within the meaning of Sec. 9(b) of the Act and that at all times since about October 11, 2022, based on Sec. 9(a) of the National Labor Rela- tions Act (the Act), the Union has been the exclusive collective- bargaining representative of the unit. The Respondent also denies pars. 7 and 8 of the complaint, which allege that its failure to recognize and bargain with the Union violated Sec. 8(a)(5) and (1) and that its unfair labor practices affect commerce within the meaning of Sec. 2(6) and (7) of the Act. The Respondent asserts, as affirmative defenses, that it acted lawfully and had no duty to bargain in this matter because the unit is comprised entirely of statutory supervisors and that the com- plaint should be dismissed. The appropriateness of the unit, however, was fully litigated and resolved in the underlying representation pro- ceeding. Accordingly, we conclude that the Respondent’s denials of the allegations in pars. 5(a), 5(f), 7, and 8 of the complaint and its af- firmative defenses do not raise any issues warranting a hearing. In addition, the Respondent has admitted that it intends to test the certifi- cation. Such an admission permits a finding, notwithstanding the Re- spondent’s denials, that the Respondent has failed and refused to rec- ognize and bargain with the Union. Biewer Wisconsin Sawmill, Inc., 306 NLRB at 732. Finally, there is no merit to the Respondent’s claim that granting summary judgment would deprive the Respondent of due process. The Respondent contends that because the preelection hearing in the under- lying representation proceeding was fact finding and not adversarial, it would violate the Respondent’s due process to deprive the Respondent of a hearing before an administrative law judge. We have found that pre-election hearings provide parties with due process. See Elixir In- dustries, 254 NLRB 52 (1981) (observing that the Board rejected the respondent’s argument in the underlying representation proceeding that the Region’s appointment of a student assistant to conduct the pre- election hearing violated Board procedures or the respondent’s due process rights), enfd. 682 F.2d 867 (9th Cir. 1982). 2 The Respondent’s request that the complaint be dismissed is there- fore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware lim- ited liability company, has been providing contract guard and security services to business and government entities throughout the State of Florida, including at the Turkey Point nuclear power plant facility. During the 12 months preceding the complaint, in con- ducting its operations described above, the Respondent purchased and received at its facilities in the State of Florida, goods valued in excess of $50,000 directly from points outside the State of Florida. We find that at all material times, the Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union has been a labor organization within the meaning of Section 2(5) of the Act. I. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following an election conducted by mail between Au- gust 3 and August 31, 2022, the Regional Director issued a Report on Objections and Certification of Representa- tive in Case 12–RC–286390 on October 11, 2022, certi- fying the Union as the exclusive collective-bargaining representative of the employees in the following appro- priate unit: All full-time and regular part-time armed and unarmed supervisors/lieutenants employed by the Employer at Turkey Point Nuclear Power Plant in Florida City, Florida; excluding all office clerical employees, securi- ty officers, shift supervisors/captains, professional em- ployees, and supervisors as defined in the Act. On December 19, 2023, the Board denied the Re- spondent’s request for review of the Regional Director’s decision. The Union continues to be the exclusive col- lective-bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain On about October 12, 2022, the Union requested that the Respondent bargain with the Union as the exclusive collective-bargaining representative of the unit. Since about October 12, 2022, and continuing to date, the Re- spondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about October 12, 2022, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that the Re- spondent be required to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would re- quire overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological framework for calculating such a remedy. The Board has decided to sever this issue and retain it for further consideration to expedite the issuance of this decision regarding the re- maining issues in this case.3 See Longmont United Hos- pital, 371 NLRB No. 162, slip op. at 2 (2022), enfd. 70 F.4th 573 (2023). The Board will issue a supplemental decision regarding a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Respondent Universal Protection Services, LLC d/b/a Allied Universal Security Services, Florida City, Florida, and its officers, agents, successors, and assigns, shall 3 Member Kaplan would not sever this issue. Instead, he would ap- ply Ex-Cell-O and deny the General Counsel’s request for a make- whole remedy. UNIVERSAL PROTECTION SERVICES, LLC 3 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union, Security, Police and Fire Profes- sionals of America (the Union) as the exclusive collec- tive-bargaining representative of the employees in the bargaining unit. (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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time armed and unarmed supervisors/lieutenants employed by the Employer at Turkey Point Nuclear Power Plant in Florida City, Florida; excluding all office clerical employees, securi- ty officers, shift supervisors/captains, professional em- ployees, and supervisors as defined in the Act. (b) Post at its facility at the Turkey Point Nuclear Power Plant in Florida City, Florida, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the 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 plac- es, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Re- spondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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.” site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent 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 proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees jointly employed by the Respondent at any time since October 12, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 12 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. March 27, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) 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 fail and refuse to recognize and bargain with International Union, Security, Police and Fire Pro- fessionals of America (the Union) as the exclusive col- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 lective-bargaining representative of our employees in the bargaining unit. 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, 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 fol- lowing appropriate bargaining unit: All full-time and regular part-time armed and unarmed supervisors/lieutenants employed by the Employer at Turkey Point Nuclear Power Plant in Florida City, Florida; excluding all office clerical employees, securi- ty officers, shift supervisors/captains, professional em- ployees, and supervisors as defined in the Act. UNIVERSAL PROTECTION SERVICES, LLC D/B/A ALLIED UNIVERSAL SECURITY SERVICES. The Board’s decision can be found at https://www.nlrb.gov/case/12-CA-305972 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.