Guardsmark, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jan 29, 2016

05-RC-143199 (N.L.R.B. Jan. 29, 2016)

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NOT INCLUDED PMH
IN BOUND VOLUMES Washington, D.C.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GUARDSMARK, LLC
Employer
and Case 05-RC-143199
INTERNATIONAL UNION, SECURITY, POLICE,
AND FIRE PROFESSIONALS OF AMERICA
(SPFPA)
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered objections
to a mail ballot election held from January 28, 2015, to February 11, 2015, and the hearing
officer’s report recommending disposition of them.1 The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots shows 11 for and 2 against the Petitioner,
with 2 void ballots and no challenged ballots.

1 The Employer filed five objections to the conduct of this election. The Regional Director
issued a report in which he set two of the objections for hearing (Objections 3 and 4) and
recommended overruling the remaining three (Objections 1, 2, and 5). In a separate Decision
and Order issued today, reported at 363 NLRB No. 103 (2016), the Board has adopted the
Regional Director’s findings and recommendations with respect to Objections 1, 2 and 5.
Accordingly, we reject the Employer’s argument that the Regional Director improperly limited
the scope of the hearing officer’s consideration of the two objections pending before us in this
proceeding.
2
The Board has reviewed the record in light of the exceptions and briefs, has adopted the
hearing officer’s findings and recommendations, and finds that a certification of representative
should be issued.2
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for the International
Union, Security, Police, and Fire Professionals of America, and that it is the exclusive collective-
bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time security officers employed by
the Employer at Providence Hospital in Washington, DC, but
excluding office clericals, professional employees, managerial
employees, and supervisors as defined in the Act.

2 We agree with the hearing officer that employees had adequate notice and opportunity to vote
in the mail ballot election and that no employee was prevented from voting as a result of
unfairness in the scheduling or mechanics of the election. See Lemco Construction, 283 NLRB
459, 460 (1987). We note that the Employer consented to the mechanics of the mail ballot
election when it entered into the Stipulated Election Agreement, which set forth the timeframe
and duplicate-request procedure that the Employer now contends were inadequate. We see no
basis for permitting the Employer to attack the election on the basis of conditions to which it
previously agreed. See Community Care Systems, 284 NLRB 1147, 1147–1148 (1987).
We also reject the Employer’s argument that the testimony of employee Chimere Bryant
demonstrates deficiencies in the procedure for requesting a duplicate ballot kit. Even assuming,
arguendo, that Bryant promptly requested and returned a duplicate ballot, her experience
provides but one isolated example in a record devoid of any other evidence that the procedure for
requesting duplicate ballots prevented employees from voting. It is uncontested that the other
five employee witnesses never attempted to avail themselves of that procedure.
To the extent that the Employer contends that the hearing officer did not have a complete
record from which to recommend disposition of Objections 3 and 4, we reject this argument as
meritless. Prior to the hearing, the Employer sought to procure testimony from the Board agent
responsible for carrying out the election and requested that the Region produce documents
relevant to the conduct of the election. Ultimately, the General Counsel provided the Employer
with most of the requested documentation, but declined to produce the marked voter eligibility
list or compel testimony of the election specialist, consistent with well-established Board policy.
The Employer has failed to present any sound reason for departing from this policy.
For the foregoing reasons and for the reasons set forth in our separate Decision and Order
reported at 363 NLRB No. 103, we disagree with our dissenting colleague’s view that the
election should be set aside.
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Dated, Washington, D.C., January 29, 2016.
________________________________
Mark Gaston Pearce, Chairman
________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Member Miscimarra, dissenting:
I find it unnecessary to reach the merits of the Employer’s Objections 3 and 4. As I
stated in a companion decision in this case, Guardsmark, LLC,3 I would set aside the election
based on the Employer’s Objection 2, which concerned the Region’s decision to prohibit the
Employer from holding captive-audience speeches beginning 24 hours before the Region mailed
the ballots.
In Peerless Plywood,4 the Board expressed concern that “last-minute speeches by either
employers or unions delivered to massed assemblies of employees on company time . . . tend to
interfere with . . . a free election.”5 Therefore, in the context of a manual election, the Board
prohibited campaign speeches, by either party, to massed assemblies of employees on company
time within 24 hours of the scheduled start of the election.6 In Oregon Washington Telephone
Co.,7 the Board established a parallel captive-audience-speech prohibition applicable to mail-
ballot elections. There, the Board held that the speech ban begins at “the time and date on which

3 363 NLRB No. 103, slip op. at 4-8 (2016) (Member Miscimarra, dissenting).
4 107 NLRB 427 (1953).
5 Id. at 429.
6 Id.
7 123 NLRB 339 (1959).
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the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office.”8 In both Peerless
Plywood and Oregon Washington Telephone, the Board imposed an inflexible consequence
when parties deviate from the rules established by those cases: violations “will cause an election
to be set aside whenever valid objections are filed.”9 Accordingly, because the Region
improperly set the starting time for the captive-audience speech prohibition as beginning 24
hours before the Region dispatched the ballots—rather than when they were dispatched—the
election should be set aside for that reason alone.10
Although I do not pass on the merits of Objections 3 and 4, I am troubled by the
possibility that additional procedural irregularities in the mail-balloting process, as alleged in
those objections, may have adversely affected employee participation in the election. The
Region failed to mail duplicate ballot kits to two employees whose ballots it voided, and two
eligible voters whose addresses appeared correctly on the Excelsior list testified they did not
receive ballots.11 Given this undisputed evidence of irregularities and the low participation
rate—only 15 of 33 eligible voters timely cast ballots—I also question the hearing officer’s
refusal to enforce subpoenas seeking testimony from two additional employees who the
Employer asserts would have also testified that they did not receive ballots.
It is important to recognize what a difficult task regional offices have conducting Board
elections, both generally and in this case. Our elections require a great deal of work and involve
an enormous amount of detail, complex issues, and very short timetables. Additional demands

8 Id. at 341.
9 Peerless Plywood, 107 NLRB at 429 (emphasis added); Oregon Washington Telephone, 123
NLRB at 341 (emphasis added).
10 See Guardsmark, LLC, 363 NLRB No. 103, slip op. at 6-7 (Member Miscimarra, dissenting).
I also explained why my colleagues erred in overruling Oregon Washington Telephone.
11 A third employee, Taniecia Byrd, whose address was substantially correct on the Excelsior
List, also testified that she did not receive a ballot.
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have been placed on our regional offices by the Board’s election rule, adopted in December
2014, which substantially revised our election procedures. Our Regional Directors and the
personnel in our regional offices accomplish a lot, working with relatively little. I believe
nobody can reasonably question the Region’s good-faith efforts. Nonetheless, for the reasons
expressed above and in the companion case (see fn. 3 above), I respectfully dissent.
Dated, Washington, D.C., January 29, 2016.
______________________________
Philip A. Miscimarra, Member