FJC SECURITY SERVICES, INC.

National Labor Relations Board - Board Decisions

Oct 18, 2013

360 N.L.R.B. 32 (N.L.R.B. 2013)

32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 6
FJC Security Services, Inc. and G. Michael Schimpf
& Ebraam Makar, Petitioner and Protective Se-
curity Officers Association, Intervenor
FJC Security Services, Inc. and Protective Security
Officers Association. Cases 22–CA–086863 and
22–RD–083707
October 18, 2013
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On June 12, 2013, Administrative Law Judge Mindy
E. Landow issued the attached Decision and Report on
Objection in this consolidated unfair labor practice and
representation proceeding. The Charging Par-
ty/Intervenor filed exceptions1 and a supporting brief,
and the Petitioner filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3 as
modified below, and to adopt her recommended Order
and Certification of Results of Election.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
IT IS FURTHER ORDERED that, in Case 22–RD–083707,
the Charging Party/Intervenor’s objection to the election
is overruled.

1 The Petitioner urges the Board to disregard the Charging Par-
ty/Intervenor’s exceptions because they fail to comply with Sec. 102.46
of the Board’s Rules and Regulations. We find that the Charging Par-
ty/Intervenor’s exceptions are in substantial compliance with the
Board’s Rules, and we have therefore considered them.
2 The Charging Party/Intervenor has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Because we dismiss the Acting General Counsel’s complaint on
substantive grounds, we find it unnecessary to pass on the judge’s
apparent finding that Project Manager Angel Guarino’s interactions
with employee John Garcia were outside the scope of the complaint
because they took place before June 2012.
In finding that the Respondent, through Guarino, did not unlawfully
warn or advise Garcia that approval of his benefit request was contin-
gent on his support for decertification, the judge relied, in part, on the
absence of evidence that Garcia “was ever denied any benefit to which
he was entitled.” We do not rely on this finding as a basis for dismissal,
as the complaint did not allege that the Respondent actually denied
benefits to Garcia.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Protective Security Officers Associa-
tion, and that it is not the exclusive representative of
these bargaining unit employees.
Nikhil Shimpi and Leah Jaffe, Esqs., for the Acting General
Counsel.
Clifford J. Ingber, Esq. (The Ingber Law Firm), of Greenwich,
Connecticut, for the Employer.
William S. Massey and Amanda Bell, Esqs. (Gladstein, Reif &
Meginniss, LLP), of New York, New York, for the Petition-
er.
William P. Hannan, Esq. (Oxfeld Cohen, P.C.), of Newark,
New Jersey, for the Intervenor.
DECISION AND REPORT ON OBJECTION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. On June 21,
2012,1 G. Michael Schimpf and Ebraam Makar,2 two security
officers employed by FJC Security Services, Inc. (FJC, the
Employer, or Respondent), filed a petition with the Board seek-
ing to hold an election to decertify the Protective Security Of-
ficers Association (PSOA or the Intervenor), in the following
unit of employees:
All full time and regular part time security officers employed
by the Company and assigned to Federal office sites in New
Jersey under the Company’s Federal Government contract
HSCEE208A003, excluding all other employees, including
office clerical employees, and supervisors, including ser-
geants, lieutenants and captains, as defined in the Act.
Pursuant to a Stipulated Election Agreement, a mail-ballot
election was held between August 2 and 16. The tally of ballots
showed that of 109 eligible employees, 54 voted against union
representation by the PSOA and 25 voted for continued repre-
sentation. There were also 4 void ballots and 2 challenged bal-
lots, which were nondeterminative of the outcome of the elec-
tion.
On August 22, the PSOA filed an objection to the election
alleging as follows:
In or about June 2012, The Employer informed members of
the bargaining unit represented by the incumbent union that
they should join another union, SEIU, Local 32BJ and should
talk to Makar, one of the Petitioners, about joining SEIU, Lo-
cal 32BJ.
After an investigation of the objection, the Regional Director
for Region 2,3 determined that the objection raised substantial

1 All dates are in 2012, unless otherwise indicated.
2 The General Counsel’s unopposed request to amend the transcript
to reflect the correct spelling of Petitioner Ebraam Makar’s name is
granted.
3 Although the instant matters arose in Region 22, they were trans-
ferred to Region 2 for further processing.
FJC SECURITY SERVICES 33
and material issues which would best be resolved on the basis
of record testimony.4
In addition, based upon an unfair labor practice charge filed
by the PSOA on August 8, the Board, through its Acting Gen-
eral Counsel,5 issued a complaint alleging that in June, Re-
spondent, through its supervisor and agent, Angelo Guarino,
warned and advised employees that approval of their benefit
requests were contingent on their support for the decertification
of the incumbent Union. Region 2 issued a Notice of Hearing
and Objections and Order Consolidating Cases on February 5,
2013. At the hearing, counsel for the General Counsel stated
that the allegations of unfair labor practice and objectionable
conduct were, “[f]or all practical purposes . . . coextensive.”
Respondent filed a timely answer denying the material alle-
gations of the complaint. Pursuant to the Notice of Hearing on
Objections and Order Consolidating Cases, this matter was
heard before me in New York, New York, on April 9, 2013.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Intervenor, and the Petitioner here-
in, I make the following
FINDINGS OF FACT
I. JURISDICTION
FJC is a corporation, with an office and place of business lo-
cated at 275 Jericho Turnpike, Floral Park, New York, and is
engaged in the provision of security guard and related services
for various Federal Government sites within the State of New
Jersey, the only locations involved herein. During the past 12
months, FJC, in the course and conduct of its business opera-
tions has purchased goods and materials in excess of $50,000
from suppliers located outside the State of New Jersey. FJC
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act (the Act). FJC further admits and I find
that the PSOA is a labor organization within the meaning of
Section 2(5) of the Act.6
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
FJC is a provider of security services at various locations
throughout the New York metropolitan area. It provides such
services to Federal facilities in New Jersey. The PSOA has
represented the security guards employed by FJC for the past
several years. Angelo Guarino is the project manager for New
Jersey and approximately 120 guards report, through various
other supervisory personnel, to him. From the record it appears

4 The Regional Director further concluded that, while specifically
not alleged in the objection, the investigation adduced evidence of
additional alleged preelection objectionable conduct by the Employer
including conditioning the approval of benefit requests and retention of
vacation benefits on employee support for the decertification of the
PSOA.
5 Hereafter referred to as the General Counsel.
6 I additionally take administrative notice that SEIU Local 32BJ, as
it is referred to in this record, is a labor organization within the meaning
of Sec. 2(5) of the Act, and that this labor organization admits non-
guards to membership.
that his responsibilities include processing and approving leave
requests, including those for annual vacation.
The PSOA and FJC were parties to a collective-bargaining
agreement which expired on August 31, 2012.7
As the record shows, after 1 year of work, employees are en-
titled to 2 weeks of vacation leave which is requested through
the submission of an annual leave request form. Such requests
are approved on the basis of employee seniority. In lieu of time
off, employees may request a cash payout for this time, but
such a request will not be approved, or paid, until after the an-
niversary of the particular employee’s date of hire with the
Company.
B. John Garcia’s Leave Requests in 2012
John Garcia has worked for FJC since May 2010. At some
point in time between January and March 2012,8 he submitted a
request to take vacation sometime during the month of March.
He did not receive approval for the dates he requested and was
put on the vacation schedule from May 5 to 11. He called Gua-
rino and asked why he had not received his requested vacation
time. As Garcia testified on direct examination, Guarino told
him it was because of the PSOA. On cross-examination, Garcia
testified that Guarino told him that his vacation request had
been denied because it had been requested by officers with
more seniority, and that was the end of the conversation.9
Several days later, Garcia encountered Guarino in the lobby
of 970 Broad Street, in Newark, New Jersey. He again asked
why his vacation request had been denied and, as Garcia testi-
fied, Guarino told him that he had to speak with Makar and join
32BJ. Garcia knew Makar as a fellow security officer who was
recruiting his coworkers on behalf of that labor organization. At
the time this discussion occurred, one other security officer,
who Garcia could not identify by name, was in the vicinity—
about 5–10 feet away. There is no specific evidence that this
individual or anyone else overheard the foregoing discussion.
Garcia testified that this discussion took place sometime during
March 2012.
It appears from the record that in about May, Garcia asked
for a cash out of his vacation pay. He submitted a form to Gua-
rino who responded with a phone call informing Garcia that his
request had been denied because of the PSOA. On cross-
examination, Garcia clarified that he had been told that he had
to wait until after his anniversary date to receive a cash out for
that year.10

7 Although no party sought to introduce this collective-bargaining
agreement into evidence, it is referenced in the decertification petition.
8 Garcia exhibited confusion and a lack of recollection regarding the
dates of particular events, among other things, and was shown a pretrial
statement to refresh his recollection on several occasions during his
testimony. My findings as to the dates of conversations with Guarino
and others are based upon his testimony and the conclusions that may
be drawn from the record as a whole.
9 I note that this testimony was elicited by a nonleading question
from counsel for the Respondent whereby Garcia was simply asked to
recount his interactions with Guarino regarding his various requests for
vacation time.
10 Again, this testimony was in response to a nonleading question
from Respondent’s counsel.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Some time after his conversations with Guarino, Garcia dis-
cussed his situation with fellow security officers Perella and
Austin who advised him that other officers, including Ben
Czerny, were in similar circumstances. Garcia was advised that
he could not be denied a cash out for his vacation pay. He was
told to write a statement, and provide it to PSOA President
Tyrone Leak, which he did. As Garcia testified, he recounted in
his statement (which was not introduced into evidence) that he
was denied his cash out because he didn’t speak to Makar or
join Local 32BJ. Garcia further testified that he discussed his
situation with other coworkers including: Leak, PSOA Secre-
tary Katina Sampson, Austin, Perella, Jose Garcia, and Ben
Czerny. Garcia further stated that there were about four other
employees with whom he discussed the matter, but could not
recall their names. There is no specific evidence as to when
such discussions were held.
I note that the complaint does not allege, Garcia did not testi-
fy and the evidence otherwise fails to establish that Garcia was
actually denied a cash out of his vacation pay, or the opportuni-
ty to take accrued vacation time. There is also no evidence as to
his anniversary date or whether Garcia submitted a request for a
cash out after that date had passed.
Guarino, who testified herein, failed to offer any testimony
to rebut Garcia’s assertions.
C. Ben Czerny’s Requests for a Vacation Pay Out
Ben Czerny testified that he has worked for FJC for several
years and his anniversary date is June 16. At some point he
realized that he had not received a vacation payout for the years
2011 and 2012. As Czerny testified, in February 2012, he sent a
letter to FJC Supervisor Captain Delucca requesting a cash
payout and was advised that he would have to wait to receive
the funds until after his anniversary date. In April, he contacted
Guarino and was again told that he would have to wait until
after his anniversary date. At some point between April and
June he discussed this situation with PSOA Secretary Sampson.
As Czerny reported, Sampson attempted to assist him by con-
tacting the corporate office and filling out appropriate forms.
He received assistance from Union President Leak, as well.
At some point, shortly after Czerny’s June 16 anniversary
date, he sent a text message to Guarino about the matter and
was told to come into the office, located in Nutley, New Jersey.
When Czerny arrived, three people were present: Guarino,
Sergeant McKay, and one other individual working at a com-
puter. Each individual was seated in a cubicle, behind dividers
approximately 5–6 feet tall.
On direct examination, Czerny testified that he told Guarino
that he had come for his vacation pay and Guarino responded
that “better I join BJ32, because BJ32 can help me to keep my
seniority post and my vacation time.” There was also a discus-
sion about the attorney for the PSOA, whom Guarino dispar-
aged. Guarino also told Czerny that when he received a ballot
for Local 32BJ he should vote “yes” because that Union had
good health insurance. Czerny then made some reference to the
fact that he already had health insurance and had been partici-
pating with the PSOA in a lawsuit against the prior union which
had represented the security guards.
As Czerny then testified, Guarino looked his records up on
the computer and stated that Czerny was owed 3 weeks of vaca-
tion. Czerny thought he was owed more time, but didn’t want to
dispute that calculation because he needed the money, so he
went along with Guarino’s assessment. When asked on cross-
examination whether he had filed a grievance regarding the
additional time he thought he was owed, Czerny stated that he
had not done so.
According to Czerny, Guarino then assisted him in complet-
ing the vacation request form and faxed it to the corporate of-
fice on his behalf. As Czerny testified, “The whole thing was
like—Mr. Guarino also faxed my request and he helped—he
write up the vacation request. He fax it. I was, matter of fact,
happy with that, because save time to me doing that.” The
whole matter took about 15 or 20 minutes and Czerny then left
the office.
Czerny testified that, prior to his visit to the Nutley office, he
had discussed his situation with Leak and Sampson, but after he
visited Guarino he did not discuss what occurred there or what
Guarino stated to him with any of his coworkers.
For his part, Guarino offered blanket denials to discussing
the union election or health benefits with Czerny. He also testi-
fied that the PSOA contract goes by the employee’s anniversary
date and that employees may not cash out their vacation time
prior to that date each year. He further testified that Czerny had
made similar requests for vacation cash outs in prior years and
had been advised that he would have to wait until after his an-
niversary date had passed.
III. ANALYSIS AND CONCLUSIONS
A. Scope of the Complaint
As noted above, the General Counsel has alleged that in June
2012,11 Respondent, by Guarino, violated Section 8(a)(1) of the
Act by warning and advising employees that approval of their
benefit requests were contingent on their support for the decer-
tification of the incumbent Union (the PSOA). In support of
these contentions, the General Counsel relies upon comments
made by Guarino to Garcia in March and May, and additional
statements made to Czerny in June.
Under Section 7 of the Act, employees have the right to en-
gage in concerted activities for their mutual aid or protection.
Section 8(a)(1) of the Act makes it unlawful for an employer
(via statements, conduct, or adverse employment action such as
discipline or discharge) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
The test for evaluating whether an employer’s conduct or
statements violate Section 8(a)(1) of the Act is whether the
statements or conduct have a reasonable tendency to interfere
with, restrain, or coerce union or protected activities. See Relco
Locomotives, Inc., 358 NLRB 298, 309 (2012) (collecting cas-
es, and noting that the employer’s subjective motive for its
action is irrelevant).

11 The June 2012 date is specifically set forth in the charge, the
complaint, was referenced by counsel for the General Counsel in his
opening statement and reiterated in his posthearing brief. No other date
for the commission of unfair labor practices was alleged.
FJC SECURITY SERVICES 35
As an initial matter, Guarino’s discussions with Garcia all
took place prior to the filing of the decertification petition, on
June 21. There was no evidence that, at the time, Guarino was
aware that such a petition was being planned, although it is not
disputed that he was aware that Petitioner Makar was encourag-
ing employees to support Local 32BJ. There is no evidence,
however, of any discussion between Garcia and Guarino in
June.
While it is the case that an unpleaded matter may support an
unfair labor practice finding if it is closely connected to the
subject matter of the case and has been fully litigated, see, e.g.,
Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d. Cir. 1990), in the instant case, the General Coun-
sel has made no relevant argument of fact or law to request,
encourage, or support my making such a finding in the instant
case.12 Accordingly, I decline to undertake such an analysis on
my own accord.
B. Guarino’s Discussions with Garcia
Moreover, even if I were to consider the March and May
conversations to be within the scope of the instant complaint, I
would find that Respondent did not violate the Act as alleged
with regard to these discussions. The evidence simply fails to
establish that Guarino conditioned Garcia’s receipt of benefits
on supporting the decertification of the PSOA. As Garcia ini-
tially testified, his initial request for a specific time off was
denied because of “the PSOA” but as he later clarified on cross-
examination, Guarino made specific reference to the seniority
rules governing the scheduling of such benefits. Garcia’s sub-
sequent complaints about Respondent’s failure to provide him
with a cash out of his vacation moneys were similarly met with
an explanation that he would have to wait for his anniversary
date to pass before he could receive payment. While there is
unrebutted evidence that Guarino did state that Garcia should
speak with Makar about joining Local 32BJ, under the circum-
stances, it is apparent that such comments were in response to

12 The closest the General Counsel comes to propounding such an
argument is to assert that a failure to establish an exact date has not, in
other circumstances, precluded the Board from finding a violation of
the Act. In support of this contention, the General Counsel relies upon
Empire State Weeklies, 354 NLRB 815 (2009), which as is acknowl-
edged, is a two-member decision. See Hospital Pavia Peria, 355 NLRB
1300, 1300 fn. 2 (2010) (recognizing that a two-member Board “lacked
authority to issue an order”). In other respects this decision would be
inapposite in any event. In that case, the General Counsel made a
posthearing motion to amend the complaint to conform the allegations
to the facts adduced at trial relating to both the date and substance of an
alleged unlawful conversation. After concluding that the matter had
been fully litigated, the Board affirmed the judge’s decision to grant the
General Counsel’s motion. Here, no such motion has been made. The
General Counsel further relies upon Safway Steel Products, Inc., 333
NLRB 394, 399 (2001), where the ALJ, with Board approval, credited
that meetings occurred even though there was confusion about the
dates. There, the relevant analysis concerned the content of what oc-
curred during the meetings; in particular, whether a wage increase had
been offered and accepted. The confusion over the dates was found to
be “not of critical importance.” Here, based upon the allegations of
objectionable conduct which, as the General Counsel has represented,
are essentially coextensive with the alleged unfair labor practices, the
dates take on particular significance.
Garcia’s expressed dissatisfaction over the application of con-
tract rules to his situation.
It is well settled that Section 8(c) of the Act gives employers
the right to express their views about unionization or a particu-
lar union as long as those communications do not threaten re-
prisals or promise benefits. NLRB v. Gissel Packing Co., 395
U.S. 575, 617 (1969). In Poly-America, Inc., 328 NLRB 667,
669 (1999), the Board found that the respondent failed to vio-
late the Act when it informed employees that the union was no
good, had threatened to burn the plant facility, and would
charge up to $300 in weekly or monthly fees because such
comments failed to contain any threats of reprisal or promise of
benefits.
In the context of the instant case, I find that Guarino’s state-
ments to Garcia were tantamount to an expression of an opinion
of the relative benefits of membership in Local 32BJ versus the
PSOA and did not contain the sort or threats or promises that
rise to the level of interference, restraint, or coercion as would
violate Section 8(a)(1) of the Act. NLRB v. Gissel, supra; Poly-
America, supra; see also Tecumseh Corrugated Box Co., 333
NLRB 1, 7 (2001) (and cases cited therein).13
In particular, here, there is no evidence that Guarino condi-
tioned Garcia’s receipt of benefits to anything except the appli-
cation of the PSOA contract, or that he was ever denied any
benefit to which he was entitled. Moreover, as noted above,
while it may well be the case that Garcia attempted to tell the
truth to the best of his ability, I find that his testimony, while
not specifically rebutted, was compromised by his general lack
of memory about events, even after his recollection was re-
freshed on several occasions.
In sum, I conclude that the credible and reliable evidence
fails to show that Guarino, by his comments to Garcia, violated
the Act as alleged in the complaint.
C. Guarino’s June Conversation with Czerny
Similarly, I find that the General Counsel has failed to show
that Guarino warned and advised Czerny that approval of his
benefit requests was contingent upon his support for the decer-
tification of the incumbent union, or that Guarino stated or
implied to Czerny that decertifying the PSOA and supporting
Local 32BJ would be a remedy for his problems, as has more
generally been alleged by the General Counsel in his posthear-
ing brief.
As an initial matter, I credit Guarino’s testimony that Czerny
initially requested a payout of his vacation moneys prior to his
anniversary date and note that this was corroborated by Czerny
himself. After that date had passed, in June, Czerny contacted
Guarino and was advised to come to the office, which he did.
Guarino did not refuse Czerny his benefits at that time; nor did
he exact any sort of quid pro quo for the cash out. Rather, as
Czerny acknowledged in his testimony, it was Guarino who
completed the requisite paperwork and forwarded it to the cor-
porate office for further processing thereby saving Czerny time

13 Obviously, Local 32BJ was not on the ballot in the forthcoming
decertification election; however, I note that there is evidence that at
least one of the petitioners was a supporter of that union and that this
was known among employees.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and effort. Such evidence fails to support the General Counsel’s
contention that Czerny was advised that his receipt of benefits
was contingent on his support for Local 32BJ, his vote to decer-
tify the PSOA, or any other decision to engage in or refrain
from union activity.
I credit Czerny that Guarino said that Local 32BJ would help
him keep his seniority and vacation time and that he should
vote “yes” for Local 32BJ as that union had good health insur-
ance.14 Again, I find such comments to be permissible state-
ments of opinion regarding the merits of a particular labor or-
ganization, without relation to any threat or promise of benefit,
and therefore do not constitute interference, restraint, or coer-
cion in violation of Section 8(a)(1) of the Act. Poly-America,
supra, Tecumseh Corrugated Box, supra.
IV. THE OBJECTION TO THE ELECTION
A. Contentions of the Parties
The PSOA contends that the mail-ballot election held be-
tween August 2 and 16 must be set aside because: Guarino’s
statements to employees interfered with their Section 7 rights in
violation of Section 8(a)(1) of the Act; FJC impermissibly
made threats and promises to employees to encourage them to
vote against the PSOA and that FJC was not permitted to sup-
port Local 32BJ over the PSOA. The petitioners argue that the
PSOA’s objection should be overruled because the PSOA, who
bears the burden of proof, has failed to show: (1) that the com-
plained of conduct occurred during the critical period; (2) that
the conduct was unlawful or otherwise objectionable; or (3)
even if the conduct occurred within the critical period and was
objectionable, that it was not disseminated among a sufficient
number of employees so as to interfere with their free and un-
coerced choice in the election.
The facts relevant to a consideration of the PSOA’s objection
to the election are set forth above.
B. Analysis and Conclusion
It is well settled that representation elections are not lightly
set aside. Quest International, 338 NLRB 856 (2003); Safeway,
Inc., 338 NLRB 525 (2002); NLRB v. Hood Furniture Mfg.
Co., 941 F.2d 325, 328 (5th Cir. 1991) (citing NLRB v. Monroe
Auto Equipment Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert.
denied 412 U.S. 928 (1973)). “There is a strong presumption
that ballots cast under specific NLRB procedural safeguards
reflect the true desires of the employees.” NLRB v. Hood Furni-
ture Mfg. Co., supra, 941 F.2d at 328, and the burden of prov-
ing a Board-supervised election should be set aside is a “heavy
one.” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989)
(quoting Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th
Cir.), cert. denied 416 U.S. 986 (1974). The objecting party
must show that objectionable conduct affected employees in the

14 I found the substance of Guarino’s blanket denials to be unper-
suasive as was his demeanor. Guarino repeatedly failed to wait for the
question to be finished before he proffered his uncategorial denials. I
further note that as a current employee, Czerny would have little, if
anything, to gain by testifying against his supervisor and his employer.
See Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006),
quoting Flexsteel Industries, 316 NLRB 745 (1995), affd. mem. 83
F.3d 419 (5th Cir. 1996).
voting unit. Avante At Boca Raton, Inc., 323 NLRB 555, 560
(1997) (overruling employer’s objection where no evidence
unit employees knew of alleged coercive incident).
As the objecting party, the PSOA has the burden of proving
interference with the election. See Jensen Pre-Cast, 290 NLRB
547 (1988). The test, applied objectively, is whether the object-
ed-to conduct has the tendency to interfere with the employees’
freedom of choice. See Taylor Wharton Division, 336 NLRB
157, 158 (2001); Baja’s Place, 268 NLRB 868 (1984).
In Taylor Wharton, the Board delineated that:
In determining whether a party’s misconduct has the tendency
to interfere with employees’ freedom of choice, the Board
considers: (1) the number of incidents; (2) the severity of the
incidents and whether they were likely to cause fear among
the employees in the bargaining unit; (3) the number of em-
ployees in the bargaining unit subjected to the misconduct; (4)
the proximity of the misconduct to the election; (5) the degree
to which the misconduct persisted in the minds of the bargain-
ing unit employees; (6) the extent of dissemination of the
misconduct among the bargaining unit employees; (7) the ef-
fect, if any, of misconduct by the opposing party to cancel out
the effects of the original misconduct; (8) the closeness of the
final vote; and (9) the degree to which the misconduct can be
attributed to the party.15
See also Avis Rent-A-Car, 280 NLRB 580, 581 (1986).
As a general rule, the period during which the Board will
consider conduct as objectionable—warranting the setting aside
of an election, the so-called “critical period”—occurs between
the filing of the petition through the date of the election. Ideal
Electric & Mfg. Co., 134 NLRB 1275 (1961); Wyandanch Day
Care Center, 323 NLRB 39 fn. 2 (1997). Here, this period falls
between June 21 and August 16. It is the objecting party’s bur-
den to show that the conduct occurred during the critical period.
Gibraltar Steel Corp., 323 NLRB 601 (1997).
With regards to Garcia’s testimony, as discussed above, I
have concluded that he never credibly placed any interaction
with Guarino later than May 2012. Thus, neither of the discus-
sions to which he testified could reasonably be construed as
independent grounds for setting aside the election. The Board
has also held, however, that prepetition conduct may be consid-
ered where it “adds meaning and dimension to related postpeti-
tion conduct.” Dresser Industries, 242 NLRB 74 (1979). In the
circumstances of this case, however, given the actual nature of
the conduct at issue, I do not conclude that either of Guarino’s

15 Not all conduct violative of Sec. 8(a)(1) will warrant setting aside
an election; rather the focus is on whether the conduct is extensive
enough to interfere with the election. Caron International, 246 NLRB
1120 (1979). However, conduct which violates Sec. 8(a)(1) of the Act
is generally considered conduct which interferes with the exercise of a
free and untrammeled choice in an election; see Playskool Mfg. Co.,
140 NLRB 1417 (1963). This is because the test of what constitutes
interference with the “laboratory conditions” under which an election
must be conducted is more restrictive than the test of conduct which
violates Sec. 8(a)(1) of the Act. See, e.g., Dal-Tex Optical Co., 137
NLRB 1782 (1962). Thus, my conclusion that no violation of Sec.
8(a)(1) has occurred is not necessarily determinative of the question of
whether FJC engaged in objectionable conduct, as alleged.
FJC SECURITY SERVICES 37
conversations with Garcia would have had a tendency to inter-
fere with the outcome of the election. This is particularly so
because they were rooted in the reality of the contractual limita-
tions under which employee benefits could be granted to em-
ployees at that time and, as I have found, were free from threats
or promises of benefits. With regard to any possible issue of
dissemination, there is insufficient reliable evidence to establish
when Garcia discussed Guarino’s comments with his cowork-
ers, or exactly what he might have said when he raised such
issues with them.
I conclude from the record as a whole that Czerny’s discus-
sion with Guarino took place on June 22, within the critical
period. Nevertheless, it is the case that within the context of a
representation election, an employer may express its views
about unionization as long as such opinions do not threaten
reprisals or promise benefits. Just as employers may criticize a
union, they may also make remarks favorable toward a union.
U.S. Family Care San Bernadino, 313 NLRB 1176, 1177
(1994); Dai-Ichi Hotel Saipan Beach, 326 NLRB 458, 460
(1998); Sutter Roseville Medical Center, 324 NLRB 218, 219
(1997) (“supervisory statements endorsing the union and point-
ing out the possible benefits of union representation . . are not
inherently coercive and are not objectionable when made with-
out threats of retaliation or reward, [but] are permissible ex-
pressions of personal opinion”). Moreover, an employer may
lawfully express a preference for one particular union over
another, as long as it does not engage in coercive conduct in
doing so. Flamingo Hilton-Laughlin, 324 NLRB 72, 73 fn. 1
(1997), enfd. as modified 148 F.3d 1166 (D.C. Cir. 1998); See
also Regency Grande Nursing & Rehabilitation Center, 355
NLRB 587 (2010) (incorporating by reference Regency Grande
Nursing & Rehabilitation Center, 354 NLRB 530 fn. 7
(2009)).16
In U.S. Family Care, supra at 1177, the Board found that
managers’ remarks to employees that a union would bring bet-
ter pay, benefits and job protection were unobjectionable. I find
that Guarino’s comments to Czerny about the potential benefits
of representation by Local 32BJ were, in a similar vein, unob-
jectionable.
Even if I were to assume, however, that Guarino’s comments
to Czerny were objectionable I would not find them sufficient
to warrant setting aside the election. In assessing whether con-
duct interfered with an election the board considers “the num-

16 Counsel for the Petitioner argues that there is no evidence that
SEIU Local 32BJ played any role in the election campaign or the filing
of the decertification petition. I note however, that the petition asks the
filing party to provide information regarding, “[o]rganizations or
[i]ndividuals other than Petitioner . . . which have claimed recognition
as representative and other organizations and individuals known to
have a representative interest in any employees in the unit described . . .
above.” The petition, as filed by counsel for the petitioner here lists
SEIU Local 32BJ as such a party.
ber of incidents, their severity, the extent of dissemination, the
size of the unit and other relevant factors.” Archer Services,
298 NLRB 312 (1990). Here, there is one instance of allegedly
objectionable conduct, involving one employee,17 and there is
no evidence of dissemination among the voting bargaining unit.
In this regard I note that the Board will not infer dissemination,
even where the threat is a significant one; see, e.g., Crown Bolt,
Inc., 343 NLRB 776, 777 (2004). Here, Czerny clearly testified
that he did not discuss Guarino’s June 22 comments with any of
his coworkers.
I further note that the narrowness of the vote in an election,
while not dispositive, is a relevant consideration. Robert Orr-
Sysco Food Services, LLC, 338 NLRB 614 (2002). Where, as
here, the margin of votes favoring decertification of the PSOA
was a significant one, it would be difficult to conclude that one
isolated instance of objectionable conduct, absent evidence of
dissemination, would have a tendency to affect the outcome of
the election.
Accordingly, I shall recommend that the objection filed by
the PSOA in Case 22–RD–083707 be overruled, and that a
certification of results be issued.
CONCLUSIONS OF LAW
1. FJC Security Services, Inc. (FJC) is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Protective Security Services Organization (PSOA) is
a labor organization within the meaning of Section 2(5) of the
Act.
3. FJC has not violated the Act as alleged.
4. FJC has not committed objectionable conduct as alleged in
the notice of hearing on objections and order consolidating
cases.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The complaint is dismissed.
The objection filed in Case 22–RD–083707 is overruled, and
it is further recommended that a Certification of Results be
issued.

17 The Petitioner has failed to adduce sufficient evidence to establish
that either Sergeant McKay or the other unidentified individual in the
room were eligible voters or that they actually did or could have over-
heard Czerny’s discussion with Guarino. I further note that the bargain-
ing unit specifically excludes sergeants and office clerical employees.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.