AmeriGuard

National Labor Relations Board - Board Decisions

Aug 4, 2015

362 NLRB No. 160 (N.L.R.B. 2015)

362 NLRB No. 160
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.
Ameriguard Security Services, Inc. and United Secu-
rity and Police Officers of America (“USPOA”)
and United Union of Security Guards
(“UUSG”). Case 05–RC–085844
July 31, 2015
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On August 23, 2012, the Regional Director for Region
5 issued a Decision and Order in which he found that the
petition at issue was barred by a collective-bargaining
agreement executed during the term of an earlier collec-
tive-bargaining agreement because the later agreement
covered “a new and separate bargaining unit” as de-
scribed in Michigan Bell Telephone Co., 182 NLRB 632
(1970). Thereafter, pursuant to Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner filed a timely request for review of that
decision. On October 31, 2012, the Board granted the
Petitioner’s request for review with respect to the Re-
gional Director’s application of Michigan Bell.1
Having carefully considered the entire record in this
case, we find, contrary to the Regional Director, that the
petition was not barred by a collective-bargaining agree-
ment. Accordingly, we reinstate the petition and remand
this case to the Regional Director for further appropriate
action.
Facts
The Employer supplies security guards for the U.S.
Department of Health and Human Services (HHS) and
the U.S. Food and Drug Administration (FDA) facilities
in Rockville, Maryland, pursuant to service contracts
with the federal government. The Intervenor, UUSG,
represents the approximately 200 guards who work at
those facilities. The Employer and UUSG entered into a
collective-bargaining agreement effective from October
1, 2009, to September 30, 2012. At the time of that

1 At the time of the Order granting the request for review, the com-
position of the Board included persons whose appointments were chal-
lenged as constitutionally infirm, one of whom participated in the pre-
sent case. On June 26, 2014, the United States Supreme Court issued
its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding
that the challenged appointments to the Board were not valid. In view
of that decision, we have carefully considered this matter, and reaffirm
the earlier decision to grant review.
As discussed below, in companion Case 05–RC–085863, the Re-
gional Director determined that a petition for a different unit was not
barred by a contract. No party requested review of that decision.
agreement, the Employer provided security guards to the
HHS and FDA facilities pursuant to a single service con-
tract with HHS. The collective-bargaining agreement
defined the bargaining unit as the guards assigned pursu-
ant to that particular service contract with HHS “and its
successor(s), including the U.S. Department of Home-
land Security [(DHS)].”
On October 1, 2011, the Federal Government modified
the Employer’s service contract. Although the Employer
continued to provide security guards to the HHS facilities
pursuant to an unchanged service contract with HHS, the
Employer provided security services to the FDA facili-
ties pursuant to a new service contract with DHS, rather
than HHS. After the service-contract bifurcation, DHS’s
oversight of the FDA service contract and stricter regula-
tions led to some changes in the terms and conditions of
employment for guards assigned to the FDA facilities.
Most notably, guards had to obtain a heightened security
clearance, maintain several credentials and satisfy stricter
gun-testing requirements to work at the FDA facilities.
Before the bifurcation, guards worked interchangeably at
the HHS and FDA facilities. Most guards worked some
shifts at both. Afterward, the Employer organized sepa-
rate dedicated forces of HHS guards and FDA guards.
HHS guards now almost never work at the FDA facili-
ties, though FDA guards will occasionally work at the
HHS facilities if their credentials lapse.
Until May 31, 2012, nearly 8 months after the bifurca-
tion, the Employer and UUSG continued to apply the
original collective-bargaining agreement to both the HHS
guards and the FDA guards. On May 31, 2012, the Em-
ployer and UUSG signed two agreements labeled “Con-
tract Extension[s]” that were largely identical to the orig-
inal collective-bargaining agreement. One agreement
covered the HHS guards. It retained the same recogni-
tion clause as the original agreement, defining the bar-
gaining unit as the guards assigned pursuant to the ser-
vice contract with HHS. The other agreement covered
the FDA guards and defined the bargaining unit as the
guards assigned pursuant to the service contract with
DHS. Both of the new agreements were effective June 1,
2012, to October 31, 2013.
On July 24, 2012 (68 days before the expiration of the
original collective-bargaining agreement), the Petitioner,
USPOA, filed two petitions: one to represent the HHS
guards, and the other to represent the FDA guards. The
Regional Director directed an election for the petition
seeking to represent the HHS guards, which is not at is-
sue in this case; however, the Regional Director dis-
missed the petition seeking to represent the FDA guards.
Applying Michigan Bell, supra, the Regional Director
found that, although the “Contract Extension” covering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the HHS guards did not bar a petition, the “Contract Ex-
tension” covering the FDA guards did bar a petition.
Analysis
We begin by noting that, had the Employer and UUSG
not signed a new agreement on May 31, 2012, USPOA’s
petition to represent the FDA guards filed 68 days before
the expiration of the original agreement would unques-
tionably be timely. See Leonard Wholesale Meats, Inc.,
136 NLRB 1000, 1001 (1962) (establishing that an
agreement does not bar a petition filed between 90 and
60 days before its expiration). Likewise, the Board has
long held that it will deem to be a premature extension an
amendment or new agreement entered into during the
term of an original collective-bargaining agreement that
extends the expiration date of that original agreement.
Direct Press Modern Litho, Inc., 328 NLRB 860, 861
(1999). A premature extension does not bar a petition
filed during the standard open period before the preexist-
ing expiration date of the original agreement. Id.
The Board found an exception to its premature-
extension doctrine in Michigan Bell, supra. In that case,
an employer and a union had entered into two separate
collective-bargaining agreements covering, respectively,
the employer’s plant and traffic departments. Id. at 632.
Those agreements were effective from October 4, 1966,
to October 2, 1969. Id. On June 15, 1968, the employer
created a new switching-systems department to combine
into one department related functions involving tele-
phone equipment. Id. To staff its new department, the
employer selected some of its employees from the plant
and traffic departments, who were covered by the agree-
ments described above, and some of its employees from
the operations department, who were not represented by
a union. Id. On August 28, 1968, during the term of the
plant- and traffic-department agreements, the employer
and the same union that continued to represent the plant
and traffic departments entered into a new collective-
bargaining agreement covering the switching-systems
department. Id. That agreement was effective from Au-
gust 28, 1968, to May 1, 1971. Id.
The Board dismissed an August 1, 1969 petition filed
by a rival union to represent the switching-systems de-
partment’s employees even though it was filed during the
window period of the plant and traffic departments’
agreements. Id. The Board found that the switching-
systems department’s agreement barred the petition, as it
was not a premature extension of the earlier agreements
covering the plant and traffic departments. Id. The
switching-systems department, the Board reasoned, was
“a newly created unit consisting of employees drawn
from other departments,” and the prior agreements cover-
ing other units could not affect an agreement covering
such a “new and separate departmental unit.” Id.
Contrary to the Regional Director, we do not find
Michigan Bell controlling here. Unlike Michigan Bell,
we are not presented with a situation where the employer
staffed a new department by transferring certain employ-
ees from multiple departments so as to combine employ-
ees who had not been covered by a common collective-
bargaining agreement and, for some employees, by no
agreement at all. Here, all of the Employer’s guards had
been in a single bargaining unit covered by the original
collective-bargaining agreement. Even after the service-
contract bifurcation, all of the guards remained in the
same bargaining unit under the original agreement for
nearly 8 months, although the terms and conditions of
employment of guards assigned to the FDA facilities had
changed in some respects from those of the guards as-
signed to the HHS facilities. Even though the Employer
and UUSG agreed to split the bargaining unit roughly in
half by entering into two separate new agreements on
May 31, 2012 (during the term of the original agree-
ment),2 nothing significant had changed at that time.
Under these circumstances, we find that the new agree-
ment covering only the FDA guards was a premature
extension of the original agreement—just as the Regional
Director found the new agreement covering only the
HHS guards. Accordingly, there was no bar to USPOA’s
timely petition.
ORDER
The Regional Director’s dismissal of the petition is re-
versed. We reinstate the petition and remand the case to
the Regional Director for further appropriate action.
Dated, Washington, D.C. July 31, 2015
Mark Gaston Pearce, Chairman
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 No party contends that it was improper for the Employer and
UUSG to split the bargaining units by agreement.