GARDA CL GREAT LAKES, INC.

National Labor Relations Board - Board Decisions

Jun 28, 2013

359 N.L.R.B. 1334 (N.L.R.B. 2013)

1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 148
Garda CL Great Lakes, Inc. and United Federation of
Special Police and Security Officers, Inc. Cases
09–CA–087203 and 09–RC–085968
June 28, 2013
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On March 19, 2013, Administrative Law Judge Arthur
J. Amchan issued the attached decision.

The Respond-
ent filed exceptions and a supporting brief, the Acting
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.

The Acting General Coun-
sel filed limited cross-exceptions and a supporting brief,
the Respondent filed an answering brief, and the Acting
General Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions as modified
below and to adopt the recommended Order as modified
and set forth in full below.
1

The Respondent provides armored truck and guard
services nationwide. This case arises at the Respond-
ent’s Columbus, Ohio facility, where the Union seeks to
represent a unit of drivers and messengers. An election
was held on August 30, 2012,
2
and the tally of ballots
shows 8 for and 26 against the Union.
We agree with the judge, for the reasons set forth in
his decision, that the Respondent violated Section 8(a)(1)
of the Act and engaged in objectionable conduct by
granting benefits to the unit employees. In the absence
of exceptions,
3
we also adopt the judge’s finding that the
Respondent, by its Director of Risk Management Chris-
tine Bouquin, violated Section 8(a)(1) of the Act and
engaged in objectionable conduct by soliciting employ-
ees’ grievances and promising to remedy them.
We find merit in the Acting General Counsel’s cross-
exception to the judge’s dismissal of the allegation that
the Respondent additionally violated Section 8(a)(1) and

1 We have modified the judge’s recommended Order to conform to
the Board’s standard remedial language and to include a direction of
second election. We have substituted a new notice to conform to the
Order as modified.
2 All subsequent dates are in 2012.
3 In addition, no exceptions were filed to (1) the judge’s statement
that there was no allegation or objection asserting that the Respondent
unlawfully threatened that it would not negotiate with the Union; (2)
the judge’s failure to make a finding on the complaint allegation that
the Respondent’s grant of benefits also violated Sec. 8(a)(3); and (3)
the judge’s recommendation of a notice reading remedy.
engaged in objectionable conduct by soliciting grievanc-
es through the actions of its safety and health manager,
Webster Lubemba. The solicitation of employee griev-
ances during an organizing campaign “raises an inference
that the employer is promising to remedy the grievanc-
es,” and this inference is “particularly compelling when,
during a union organizational campaign, an employer
that has not previously had a practice of soliciting em-
ployee grievances institutes such a practice.” Amptech,
Inc., 342 NLRB 1131, 1137 (2004), enfd. 165 Fed.
Appx. 435 (6th Cir. 2006). Here, Lubemba’s August 7
visit to the Columbus facility, accompanied by Bouquin,
was unprecedented.
4
Employee Jeffrey Fisher gave un-
rebutted testimony that Lubemba asked him on that visit
about the condition of the armored trucks, including
whether the trucks’ air-conditioning worked, and also
whether the Respondent supplied water for employees.
Lubemba’s questions indicated management’s
knowledge that those concerns were in large part moti-
vating the organizing campaign. Lubemba made a se-
cond trip to the Columbus facility on August 20, during
which he spoke to 34 employees—almost the entire
unit—about the suitability of their uniforms for heat con-
ditions, as well as their safety concerns about the lack of
ballistic vests. In these circumstances, the Respondent
has failed to rebut the inference that Lubemba’s unprece-
dented presence—twice—to speak to employees and
solicit their grievances during the organizing campaign
carried with it the implicit promise to remedy those
grievances. See id.
5

Accordingly, we agree with the judge that the Re-
spondent violated Section 8(a)(1) and engaged in objec-
tionable conduct sufficient to warrant setting aside the
election, and we shall remand this proceeding for the
purpose of conducting a second election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Garda CL Great Lakes, Inc., Columbus,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from

4 We note that, during the visit, Bouquin described Lubemba and
herself to at least one employee as the “fix-it people.”
5 We find it unnecessary to pass on the judge’s additional findings of
unlawful solicitation of grievances by the Respondent’s senior vice
president, Vincent Modarelli, and Director of Labor Relations Ivelices
Linares. The additional violations would be cumulative and would not
affect the remedy.
GARDA CL GREAT LAKES, INC. 1335

(a) Making improvements in the working conditions
of employees to discourage them from organizing or oth-
erwise choosing union representation.
(b) Soliciting employee complaints and grievances
and either implicitly or explicitly promising to remedy
them during a union organizing campaign.
(c) 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) Within 14 days after service by the Region, post at
its Columbus, Ohio facility copies of the attached notice
marked “Appendix.”
6
Copies of the notice, on forms
provided by the Regional Director for Region 9, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its members by such means. Rea-
sonable steps shall be taken by the Respondent 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 proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 7, 2012.
(b) Within 14 days after service by the Region, hold a
meeting or meetings during working time, scheduled to
ensure the widest possible attendance, at which the at-
tached notice is to be read to the employees by a senior
vice president of the Respondent, its director of labor
relations, or an official of equivalent rank, or, at the Re-
spondent’s option, by a Board agent in the presence of
such an official.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 9 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.

6 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.”

IT IS FURTHER ORDERED that the election held on Au-
gust 30, 2012, in Case 09–RC–085968 is set aside and
Case 09–RC–085968 is severed and remanded to the
Regional Director for Region 9 for the purpose of con-
ducting a new election.
[Direction of Second Election omitted from Publication.]
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 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 make improvements in your working
conditions to discourage you from organizing or other-
wise choosing union representation.
WE WILL NOT solicit your complaints and grievances
and either implicitly or explicitly promise to remedy
them during a union organizing campaign.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
GARDA CL GREAT LAKES, INC.
Joseph F. Tansino, Esq., for the General Counsel.
Eric Hult, Esq. (Littler Mendelson, P.C.), of Columbus Ohio,
for the Respondent.
Jack Deml, of Gahanna, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Columbus, Ohio, on January 28 and 29, 2013. The
Union, the United Federation of Special Police and Security
Officers, filed the initial charge in this matter on August 13,
2012. The General Counsel issued the complaint on December
5, 2012. He also consolidated the complaint with the Union’s
August 31 objections to conduct affecting the results of the
representation election. That election was held at Respondent’s
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Columbus, Ohio facility on August 30, 2012.1
The General Counsel alleges that Respondent, by its director
of risk management, Christine Bouquin, solicited employee
complaints and grievances, promised employees increased ben-
efits, and improved terms and conditions of employment if they
refrained from union organizational activity. Without specify-
ing any individual agents, the Union objected to the employer’s
alleged solicitation of employee grievances and complaints, and
promises to remedy them during the critical period between the
filing of its representation petition on July 25, 2012, and the
Board’s representation election on August 30, 2012. The Gen-
eral Counsel alleges similar violations by Respondent’s safety
and health manager, Webster Lubemba. The General Counsel
also alleges that Respondent violated Section 8(a)(3) and (1) by
providing employees with a new refrigerator and free beverages
and in cleaning Respondent’s Columbus garage and repairing
Respondent’s trucks. This allegation tracks the Union’s objec-
tion to Respondent’s granting improvements during the critical
period, including cleaning of the garage, providing a new re-
frigerator stocked with free beverages, and other benefits.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, provides armored truck and guard
services nationwide. At the Columbus, Ohio facility, where the
alleged violations occurred, it annually purchases and receives
goods and materials valued in excess of $50,000 from outside
of Ohio. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union, the United Federation of
Special Police and Security Officers, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent, which has its headquarters in Boca Raton, Flor-
ida, has over 200 facilities in the United States and about 4000
armored trucks. At the Columbus, Ohio branch it has between
14 and 16 armored trucks with which its employees pick up and
transport cash from ATMs, banks, and similar institutions.
Each truck is staffed by two driver/messengers, who trade off
driving the vehicle and sitting in the back of the truck, facing
the rear. The two employees are separated by a bulkhead. The
employees in the truck are totally dependent on air-
conditioning and/or fans for ventilation. Given the nature of
their work, they cannot roll down the windows. The glass in
the vehicles is 3 inches thick and the employees wear 10lb.

1 The Union withdrew its Objection 2 and portions of Objection 3.
Objection 1 and the remaining portions of Objection 3 are substantially
coextensive with the allegations of the complaint. Objection 1 is that
the Employer solicited employees’ grievances and complaints and
implicitly promised to remedy them. The remaining portion of Objec-
tion 3 is that the Employer granted improvements in working condi-
tions and other benefits.
2 Tr. 151, L. 23 should read Eric Hult, rather than Timothy Fadel.
bullet proof or resistant vests while in the truck.
The armored trucks at the Columbus facility are generally 8–
10 years old. By the summer of 2012, the air-conditioning in
the trucks had been failing with regularity for several years.
During the summer, employees with regularity worked 12–13-
hour shifts inside a truck in which the temperature exceed 105
degrees Fahrenheit. Management at the facility accorded re-
pairs to the air-conditioning very low priority despite regular
employee complaints.
Employees had been complaining to management about the
lack of air-conditioning for several years. Also, on July 22,
2011, somebody, most likely an employee, complained to the
Federal Occupational Safety and Health Administration
(OSHA). The complainant(s) stated that the front, back, or
both areas of Respondent’s then 14 trucks did not have working
air-conditioning and that approximately 35 employees were
exposed to extreme heat since they could not roll down the
windows. OSHA did not conduct an on-site investigation of
these complaints. Rather the OSHA area director in Aurora,
Illinois, wrote Respondent a letter requesting that it investigate
the situation, make necessary corrections and advise OSHA of
the results of the inspection.
On July 28, 2011, Mark Livingston, a senior vice president
and general counsel of Garda, replied to OSHA. He stated that
the branch manager and branch employees conducted an in
route air-conditioning verification of all active routes. The
response essentially stated that the air-conditioning on most
trucks was in working order. Those trucks that had defects had
been repaired or were being repaired (R. Exh. 3). Suffice it to
say that if this was an accurate picture as of July 28, 2011, the
situation had deteriorated markedly by July 2012.
Scott Jacks, the Columbus branch manager, who was termi-
nated in mid to late August 2012, was under the impression that
it was company policy not to remove trucks from service on
account of nonfunctioning air-conditioning (GC Exh. 5). Be-
tween 2010 and July 2012, when employees complained to
branch management about the lack of air-conditioning, they
were told that Respondent was not required to provide the
trucks with air-conditioning (Tr. 34).3
Conditions inside the Columbus truck terminal also left
much to be desired. The floors and walls were filthy, there was
oil on the floor which posed a slipping hazard and the eyewash
station required by OSHA was unusable.4 There were also
numerous electrical hazards. The restrooms were dirty and at
least one did not have hot water or soap in the summer of 2012.
There was no potable water in the drivers’ area of the garage.
There was a refrigerator from which employees could purchase
water or soda. Respondent did not supply the driv-
er/messengers with water to drink.
In the summer of 2012, Respondent’s upper-level manage-
ment became aware that there were heat-related issues at a
number of its facilities that were producing employee com-

3 I note that all the employee testimony in this case is uncontradict-
ed.
4 OSHA requires a functioning eyewash station where employees
can get caustic substances in their eyes.
GARDA CL GREAT LAKES, INC. 1337

plaints to OSHA and union organizing drives.5 On June 20,
2012, Vincent Modarelli, a senior vice president based in Wil-
mington, Delaware, exchanged emails with Robert Larmore,
the branch manager in Edison, New Jersey. These emails men-
tioned seven calls to OSHA regarding air-conditioning issues,
one of which was at the Edison Branch. Modarelli responded,
“[T]his is not a coincidence . . . 7 OSHA complaints re: A/C
and then a union organization effort.get on top of this and in
front of your people starting NOW!” (R. Exh. 1).6
Between June 21 and 28, 2012, Christine Bouquin, Garda’s
newly hired director of risk management, began working on
plans to address the heat-related OSHA complaints Garda had
been receiving. On June 28 she emailed Modarelli and others
that consideration was being given for certain branches to par-
ticipate in a pilot program to test the effectiveness of cooling
and rehydration devices (R. Exh. 1). There is no evidence that
attention was directed to problems at the Columbus, Ohio
branch until August 1, a week after the Union filed a represen-
tation petition.
On July 16, 2012, Xiomara Tennyson, who is apparently a
team leader at Respondent’s Needham, Massachusetts branch,
wrote to Garda Vice President Steve Morss about the air-
conditioning problems at that branch. She noted that three of
those branches’ trucks broke down during the previous week
and that employees worked in temperatures of 115–120 degrees
when the air-conditioning stopped working. Tennyson indicat-
ed that these conditions made it difficult for her to respond to
employees considering union representation (GC Exh. 13).
Later in July 2012, an employee from the Grand Rapids,
Michigan branch was hospitalized with a heat-related illness
after the air-conditioning in his truck stopped functioning. The
State of Michigan Occupational Safety and Health Administra-
tion apparently conducted an on-site inspection of the Grand
Rapids facility on about July 26 (GC Exh. 19).
On July 25, 2012, the Union filed a petition with the Board
to represent all full-time and regular part-time driv-
er/messengers and vault custodians employed by Respondent’s
Columbus, Ohio facility.
On or about August 1, 2012, Respondent launched a pilot
program to address the air-conditioning issues at its facilities,
Among the management personnel involved in planning this
project were Christine Bouquin, Garda’s risk management di-
rector, her boss, Lori Brown, Respondent’s chief legal counsel
and director of human resources, and Ivelices Linares, Re-
spondent’s director of labor relations, all of whom are based in
Boca Raton, Florida. In selecting branches for this pilot pro-

5 Webster Lubemba testified that Garda had received correspond-
ence from OSHA concerning insufficient air-conditioning at facilities at
Edison, New Jersey, Michigan, most of Garda’s California branches, a
couple of branches in Georgia, and a couple in Texas. I infer all or
most were received in the summer of 2012 (Tr. 239–240), because
there appears to have been no corporatewide effort to address these
complaints or inquires until the summer of 2012.
6 At hearing Respondent moved only for the admission of p. 1 of the
exhibit, which was incomplete. On January 31, I granted the General
Counsel’s unopposed motion to reopen the record to receive the com-
plete 2-page exhibit.
ject, Respondent considered complaints, citations, heat-related
claims and potential union activity (GC Exh. 4). Linares specif-
ically suggested the inclusion of the Fairfield, New Jersey
branch based on an imminent union representation election,
The final list of seven branches for the pilot program appears
to have been finalized on about August 5, 2012. Union activity
was obviously a material factor in compiling this list. Colum-
bus was placed at the top of the list. As there had not been any
workers-compensation claims, or heat-related illness or recent
OSHA complaints filed by Columbus employees, I infer that
the priority given to Columbus was in large part a result of the
representation petition filed on July 25. Respondent was aware
of union organizing activity at three of the other six branches
included in the pilot program, Edison, Fairfield, and Needham.
There is no evidence as to why Stamford, Connecticut, Phoe-
nix, Arizona, or Wilmington, Delaware (other than the fact that
VP Vincent Modarelli worked there), were selected for the pilot
program. There is no evidence one way or another as to wheth-
er there was any union organizing activity at those three
branches or whether OSHA has expressed interest in conditions
there.
Not included on the list of seven pilot facilities was Grand
Rapids, Michigan, where an employee had been hospitalized
earlier that summer due to nonfunctioning air-conditioning, nor
the branches in California, Texas, Georgia, and Myrtle Beach,
South Carolina, where OSHA complaints had been filed or
OSHA had made inquires of Garda.
During the first week of August, Respondent identified seven
trucks at the Columbus branch with cooling units that needed
repair (GC Exh. 4).7 It embarked on a crash program to repair
these air-conditioning units. The repairs were done either by
Garda employees from other facilities or outside contractors.
The Columbus branch did not have mechanics on site.
On August 7, 2012, Christine Bouquin and Webster Lubem-
ba, Garda’s health and safety manager from Smyrna, Georgia,
arrived at the Columbus facility. Neither had been to this fa-
cility previously, and Columbus was the first Garda facility
visited by Bouquin outside of the State of Florida. Ivelices
Linares arrived at the facility the next day to discourage the
employees from selecting union representation. Linares sug-
gested or directed that Bouquin and Lubemba visit the Colum-
bus branch prior to Linares’ arrival at the facility. This was
deemed to a sufficient priority that Garda’s rule that travel res-
ervations be made 2 weeks in advance was ignored.
Of the seven pilot facilities, Bouquin only visited two, Co-
lumbus and Wilmington, Delaware, the branch at which Vice
President Vincent Modarelli was based. Bouquin did not visit
the Columbus facility after August 7–8, 2012; Lubemba made
several followup visits one of which was prior to the August
30, 2012 representation election.
Bouquin found that the Columbus garage was dirty, the

7 R. Br. at p. 7 states that “it late July, [Garda’s Risk Management
Team] learned that seven of the fourteen trucks at the Columbus Facili-
ty were “down” with faulty air conditioning.” There is no evidence that
the risk management team knew of this prior to August 1, 2012. It
certainly became aware of this fact several days to a week after the
Union’s representation petition was filed.
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

trucks were in disrepair, there was oil on the floor, the eyewash
station was unusable, and the restroom did not have hot water.
Webster Lubemba found what he considered to be many viola-
tions of OSHA and Department of Transportation regulations,
including electrical hazards. Garda hired an outside cleaning
company to correct some of these issues during or just after
Bouquin and Lubemba’s visit.
During her visit to the Columbus facility on August 7–8,
Bouquin spoke to a number of employees. She asked Jason
Durbin and his partner why employee morale was low and what
Garda could do to improve it (Tr. 50–52). Durbin complained
about the cleanliness of the bathrooms, oil on the floor, diesel
soot covering the garage, and lack of functioning air-
conditioning. Bouquin responded sympathetically and implicit-
ly, if not explicitly, promised to try to remedy these complaints.
She promised to provide drinking water for the drivers.
During August, in addition to correcting the heat problems in
the trucks, and cleaning the garage, Respondent installed a
refrigerator in the garage area from which employees could
take water in their trucks without paying for it.
Garda Senior Vice President Vince Modarelli and Labor Re-
lations Director Ivelices Linares were at the Columbus facility
once or twice between August 7 and the August 30 representa-
tion election. Linares spoke at a mandatory meeting for unit
employees on August 8 to persuade them to vote against union
representation, while Bouquin and Lubemba were still at the
Columbus facility. Respondent did not present any evidence as
to what Modarelli and/or Linares said to employees when they
met with them. Since the employee testimony regarding what
Modarelli and/or Linares said is uncontradicted, I credit that
testimony.
Modarelli told employees that if they withdrew the represen-
tation petition and gave Garda 6 months to make their working
conditions better, that Modarelli would make sure that employ-
ees were all happy. If not, Modarelli told employees they could
have the Union without an election (Tr. 57). On cross-
examination, employee Jason Durbin testified that Linares did
not say she would make things better if employees voted no in
the representation election (Tr. 62). However, he made it clear
that it was Modarelli who made the promises he testified to on
direct, rather than Linares (Tr. 63).
Scott Hall, another driver, read from an affidavit given to the
Board on August 22, 2012, about a mandatory meeting with
Ivelices Linares on August 8. He did not repudiate anything in
the affidavit, thus I find the facts as he stated them in the affi-
davit. Hall did not mention the presence of Vincent Modarelli.
However, Hall testified that Linares told employees that Garda
was told to terminate 17 employees in Fairfield, New Jersey,
for failure to pay union dues. He also testified that:

She also told us that Garda doesn’t have to negotiate with the
Union, and basically that negotiations with unions were a
myth and that they didn’t do that at Garda, Tr. 82.

I would note that if such comments were made they would
be clear violations of Section 8(a)(1) and objectionable conduct
that warrant ordering a second election. However, there is no
allegation regarding these speeches or conversations either in
the complaint or in the Union’s objections.
During her speech, Linares told the Columbus employees
that they were at the top of the list for replacement vehicles and
were part of a pilot program regarding air-conditioners (Tr.
104). The day after the August 8 meeting, Garda mechanics
from Louisville, Kentucky, arrived at the Columbus facility.
They worked on the trucks’ air-conditioning and installed 6-
inch fans on the dashboards (Tr. 99).
The representation election was conducted on August 30,
2012. Of 41 eligible voters, 26 voted against union representa-
tion and 8 voted for the representation by the Charging Party
Union.
ANALYSIS
This case presents two different but related issues: (1)
whether Garda (not as Respondent contends, Christine Bouquin
and Webster Lubemba) violated the Act and committed objec-
tionable conduct in granting improvements to the working con-
ditions of bargaining unit employees during the critical period
between the filing of the representation petition and the elec-
tion; and (2) whether the Respondent (rather than Bouquin
and/or Lubemba) violated the Act in soliciting employee griev-
ances and complaints and promising employees increased bene-
fits and improved working conditions.
Section 8(a)(1) of the Act prohibits not only intrusive threats
and promises but also conduct immediately favorable which is
undertaken with the express purpose of impinging upon em-
ployees’ freedom of choice for or against unionization and is
reasonably calculated to have that effect, NLRB v. Exchange
Parts Co., 375 US 405 (1964). Justice Harlan noted in his
opinion that, “the beneficence of an employer is likely to be
ephemeral if prompted by a threat of unionization which is
subsequently removed.” That danger certainly exists in the
instant case in which Respondent’s heat-related issues appear to
exist at many of its over 200 branches. With the specter of
unionization gone, one cannot presume that the improvements
made at the Columbus branch will be permanent or that condi-
tions will not be allowed to deteriorate as they apparently did
after the 2011 OSHA inquiry.
As a general rule, an employer’s legal duty in deciding
whether to grant improvements while a representation proceed-
ing is pending is to decide that question as if the union were not
on scene. In determining whether a grant of benefits is unlaw-
ful the Board has drawn the inference that benefits granted
during the critical period are coercive, but has allowed the em-
ployer to rebut the inference by coming forward with an expla-
nation, other than a pending election, for the timing of the grant
or announcement of such benefits, Niblock Excavating, Inc.,
337 NLRB 53 (2001); Lampe, L. L. C., 322 NLRB 502 (1996);
United Airlines Services Corp., 290 NLRB 954 (1988). If the
grant of such benefits is unlawful it constitutes an unfair labor
practice and objectionable conduct sufficient to order a rerun of
the representation election.
The solicitation of grievances by an employer during an or-
ganizational campaign violates the Act when the employer
promises to remedy those grievances. The solicitation of griev-
ances alone is not unlawful, but it raises an inference that the
employer is promising to remedy those grievances. This infer-
GARDA CL GREAT LAKES, INC. 1339

ence is particularly compelling when, during an organizational
campaign an employer which had not previously had a past
practice of soliciting grievances, institutes such a practice or
significantly alters its prior manner and methods of solicitation
during the campaign, Center Service System Division, 345
NLRB 729, 730 (2005).
Improvements in Working Conditions/Increased Benefits
(Objection 3, complaint par. 6).
The record is crystal clear that Respondent made tremendous
improvements in the working conditions of unit employees
during the critical period, such as repairing the air-conditioning
of the trucks, providing free potable water,8 cleaning the gar-
age, cleaning and repairing the restrooms, and abating numer-
ous hazardous conditions.
It is equally clear that the timing of these improvements was
in large part motivated by Respondent’s desire to have the em-
ployees vote against union representation in the August 30
representation election. With regard to the air-conditioning/
heat issues, it is apparent that there were serious issues at a
number of Garda facilities. From this record, it appears that
nothing was being done to remedy those issues until Garda
received inquiries from OSHA and became aware of several
union organizing drives in June and July 2012 (see, e.g., Tr.
243–245). For example, there is no indication that Respondent
(or OSHA for that matter) followed up on the July 2011 com-
plaints to determine whether the air-conditioning in the Colum-
bus trucks was being properly maintained.
Upon receiving these complaints, Respondent initiated a pro-
ject to evaluate “hot spots” within the Company. This evolved
into a pilot program or “Project Cool” under the direction of
Christine Bouquin, who Garda hired in late May 2012 as direc-
tor of claims. In mid to late June, Bouquin’s title was changed
to director of risk management. She and Webster Lubemba, a
health and safety manager, were given responsibility for this
effort in close coordination with higher-management officials,
including Senior Vice President Vincent Modarelli, Human
Resources Director Lori Brown, and Labor Relations Director
Ivelices Linares.
In selecting facilities for its pilot program with regard to air-
conditioning and heat-related issues, Garda focused to a signifi-
cant extent on the presence of union activity at the selected
facilities. Of the seven facilities selected for the pilot program,
there was ongoing union activity so far as this record indicates
at four, Columbus, Edison, New Jersey, Fairfield, New Jersey,
and Needham, Massachusetts. There is direct evidence that
Fairfield was included in the list due to an imminent representa-
tion election (GC Exh. 4 p. 2). I infer the same for Columbus.
There is no evidence that anyone in the Garda hierarchy
above the Columbus branch manager was aware of the 2012 air
conditioning/heat issues at Columbus prior to the filing of the

8 Contrary to Respondent’s assertion in its brief, I find that providing
free drinking water in the circumstances of this case constitutes a mate-
rial benefit and improvement in the working conditions of Respond-
ent’s armored truck crews.
representation petition on July 25 (see, e.g., Tr. 162).9 There is
no evidence that anyone inquired about these matters. I infer
that higher management learned that seven trucks did not have
functioning air-conditioning in response to an inquiry as to why
a union representation had been filed.
While it may be true that Respondent was genuinely con-
cerned with these issues once discovered, I infer they would not
have come to higher management’s attention but for the filing
of the Union’s petition. It is also clear that the correction of
the heat and other issues at Columbus was part and parcel of
Garda’s efforts to convince its employees to vote against union
representation.
Solicitation of Grievances and Promises to Remedy Grievances
(Objection 1 and complaint par. 5)
The focus on the activities of Christine Bouquin and Webster
Lubemba in the complaint and in the parties’ briefs is mis-
placed. Bouquin and Lubemba, although agents of the Re-
spondent, were foot soldiers in Garda’s efforts to remedy prob-
lems at the Columbus facility and at the same time discourage
employees from selecting union representation. It is not their
motivation that matters in this case, but the motivation of Garda
as a corporation.10
Respondent violated the Act by soliciting grievances and ei-
ther explicitly or implicitly promising to remedy these griev-
ances in several instances. Christine Bouquin solicited griev-
ances and at least implicitly promised to remedy them in her
conversation on August 7 with Jason Durbin and his partner.
The presence of officials from outside the Columbus branch to
remedy employee complaints was completely unprecedented
and clearly motivated by the Union’s representation petition.
Vincent Modarelli explicitly promised to remedy employee
grievances if they did not choose union representation. Addi-
tionally, Ivelices Linares, in telling Columbus employees that
they were at the top of the list for replacement vehicles, was
also explicitly promising to remedy employee complaints about
the condition of their vehicles, including but not limited to the
air-conditioning. Although the complaint allegations regarding
solicitation of grievances and promises to remedying them are
limited to Bouquin and Lubemba, the Union’s Objection 1 is
phrased in terms of the Employer’s conduct. I find Modarelli’s
and Linares’ conduct constitute objectionable conduct and vio-
lations of Section 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent improved the working conditions of unit
employees during the critical period between the Union’s July
25, 2012 representation petition and the August 30, 2012 repre-

9 R. Br. at pp. 17–18 suggests this is a factor to be considered in Re-
spondent’s favor. However, the knowledge of Respondent’s then
branch manager, Scott Jacks, and its Assistant Manager Terry Hupp
(who replaced Jacks) is imputable to Respondent. Moreover, by virtue
of the 2011 OSHA inquiry, answered by corporate counsel, Garda was
on notice that there were heat/air-conditioning issues at the Columbus
branch. At a minimum, Respondent’s oversight of Jacks and other
branch managers relating to heat/air-conditioning issues was very lax or
nonexistent prior to the summer of 2012.
10 Moreover, there is no evidence that Lubemba solicited anyone.
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sentation election, in an effort motivated in material part to
dissuade unit employees from selecting union representation.
2. The Respondent solicited employee grievances and com-
plaints with the implicit promise to remedy them during the
critical period.
3. Respondent, Garda, CL Great Lakes, Inc., has engaged in
objectionable conduct necessitating the setting aside of the
results of the August 30, 2012 election and the conduct of a
second election. By the same conduct it has committed unfair
labor practices and violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Obviously, no reasonable person would order the Respond-
ent to rescind the improvements it made in the working condi-
tions of unit employees. Thus, for this decision to have any
impact at all, I find it necessary to order that the attached notice
be read aloud to employees so that they will fully perceive that
Respondent and its managers are bound by the requirements of
the Act. The reading of the notice will ensure that the infor-
mation in the notice is disseminated to all employees including
those who do not consult Respondent’s bulletin boards, Homer
D. Bronson Co., 349 NLRB 512, 515–516 (2007). Thus, when
a rerun election is conducted the employees will have a full
understanding of their statutory rights and may select or reject
union representation accordingly.
[Recommended order omitted from publication.]