Guardsmark, LLC

National Labor Relations Board - Board Decisions

May 3, 2007

349 N.L.R.B. 1003 (N.L.R.B. 2007)

GUARDSMARK, LLC
349 NLRB No. 93
1003
Guardsmark, LLC and Plant Protection Association
National. Case 7–CA–49745
May 3, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on August 25, 2006, the
General Counsel issued the complaint on September 1,
2006, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case 7–
RC–22970. (Official notice is taken of the “record” in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(b);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On January 29, 2006, the General Counsel filed a Mo-
tion for Summary Judgment. On January 31, 2007, the
Respondent filed an opposition to the General Counsel’s
motion, a motion for reconsideration, and a motion to
remand the case for consolidation with related cases and
for hearing. The General Counsel and the Union each
filed a reply to the Respondent’s motions. On February
7, 2007, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis that the
Union has admitted nonguards to membership and there-
fore no certification should have been issued in the un-
derlying representation case. In addition, the Respondent
alleges as affirmative defenses that the Union has en-
gaged in unfair labor practices in violation of Section
8(b)(1)(A) and (3) of the Act; that a charge presenting
these unfair labor practice issues is pending before Re-
gion 7 (Case 7–CB–15318); that, under Board precedent,
the Respondent could not have litigated its unfair labor
practice allegations in the underlying representation pro-
ceeding; that the Union’s unlawful conduct warrants re-
voking its certification; that the General Counsel’s Mo-
tion for Summary Judgment should be denied; and that
the instant case should be consolidated with Case 7–CB–
153181 and remanded for hearing. As explained below,
we find no merit in the Respondent’s contentions.
A. The Representation Issues
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. Specifically with respect to the Re-
spondent’s contention that the Union cannot lawfully be
certified because it has admitted nonguards to member-
ship, the Board has previously rejected this argument in
the underlying representation proceeding, and thus this
issue is not properly raised here. The Respondent does
not offer to adduce at a hearing any newly discovered
and previously unavailable evidence, nor does it allege
any special circumstances that would require the Board
to reexamine the decision made in the representation
proceeding. We therefore find that the Respondent has
not raised any representation issue that is properly liti-
gable in this unfair labor practice proceeding.2 See Pitts-
burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941).
B. The 8(b)(1)(A) Issue
According to the Respondent, on July 1, 2005, it en-
tered into a collective-bargaining agreement with the
Union effective from July 1, 2005, to April 30, 2008.
Article III, section 6, provides as follows:
If it shall be determined by National Labor Relations
Board certification that the Union is the exclusive col-
lective bargaining representative for any unit of Com-
pany employees not covered by this Agreement (in-
cluding a unit of employees in a new Company loca-
tion), this Agreement shall extend automatically to such
new unit.
The Respondent contends that, by virtue of this contract
provision, the Union accepted unlawful assistance and rec-
ognition from the Respondent in violation of Section
8(b)(1)(A). The Respondent argues that the Union’s unlaw-
ful conduct “taints” all support the Union received thereaf-
ter, including the support it received in the election held on

1 The Respondent’s motion to consolidate includes Cases 3–CB–
8614, 5–CB–10035, 9–CB–11658, 16–CB–7302, and 26–CB–4759, in
which it also filed 8(b)(1)(A) and (3) charges against the Union.
2 Accordingly, we deny the Respondent’s motion for reconsideration
of the Board’s decision in the underlying representation case.
Member Kirsanow dissented from the Board’s denial of the Respon-
dent’s May 26, 2006 request for review. He would have granted review
and remanded the proceeding for introduction into evidence and con-
sideration of certain rejected exhibits. While Member Kirsanow re-
mains of that view, he agrees that the Respondent has not presented any
new matters that are properly litigable in this unfair labor practice case.
See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for
institutional reasons, Member Kirsanow agrees with the decision to
grant the General Counsel’s Motion for Summary Judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1004
May 26, 2006. The Respondent asserts that such “tainting”
constitutes “good grounds for denying representation rights
to a union.”
We were administratively advised, however, that the
Respondent did not file its unfair labor practice charge in
Case 7–CB–15318 until August 29, 2006, 3 months after
the election.3 The Respondent does not explain why it
did not file its 8(b)(1)(A) charge before the election and
seek to have the election held in abeyance pursuant to the
Board’s blocking charge policy.4 Under these circum-
stance, we find that the issue of whether the alleged
“taint” prevented the holding of a fair election “could
have been raised in the underlying representation pro-
ceeding” and, therefore, “the Respondent is precluded
from litigating it now.” C & C Roofing Supply, Inc., 349
NLRB 667, 667 fn. 4 (2007).
C. The 8(b)(3) Issue
According to the Respondent, on July 7, 2006, ap-
proximately 2 weeks after the Regional Director issued a
certification of representative in the representation pro-
ceeding, the Union invoked article III, section 6, of the
collective-bargaining agreement and demanded that the
Respondent apply its terms to the newly-certified bar-
gaining unit. The Respondent contends that, by this con-
duct, the Union unlawfully attempted to merge the certi-
fied unit with the unit covered by the collective-
bargaining agreement. The Respondent asserts that the
Union’s unlawful conduct warrants revocation of its cer-
tification.
Solely for purposes of our decision, we will assume
arguendo that the Respondent is correct that the Union’s
conduct violated Section 8(b)(3). However, the Respon-
dent has failed to cite any authority to support its position
that such a violation would result in the revocation of the
Union’s certification. Rather, Board precedent is clear
that the appropriate remedy for a union’s insistence on
the merger of separate bargaining units is an order to
cease and desist from the unlawful conduct and to take
affirmative action to withdraw the demand that the sepa-

3 We were also administratively advised that the charge was dis-
missed on March 7, 2007, and that the Respondent filed an appeal,
which is currently pending in the Office of Appeals.
4 See NLRB Casehandling Manual (Part One) Unfair Labor Practice
Proceedings, Section 11730 (“Blocking Charge Policy–Generally”).
Indeed, in its response, the Respondent acknowledges that it followed
such a course of action in response to a representation petition that the
Union filed in Region 3: “[T]he Respondent/Employer sent a letter to
the Regional Director of Region 3 requesting that the processing of the
petition be suspended pending the outcome of the processing of the
charge in Case 3–CB–8614, noting that the Charging Union’s prema-
ture recognition of, and acceptance of contract terms for, all future units
. . . tainted all support that the Union received after it committed its
unlawful acts.”
rate units be merged. E.g., Chicago Truck Drivers (Sig-
nal Delivery), 279 NLRB 904, 907 (1986); Electrical
Workers Local 323 (Active Enterprises), 242 NLRB 305,
310 (1979). Therefore, we reject the Respondent’s af-
firmative defense that because the Union invoked article
III, section 6, of the collective-bargaining agreement, the
certification should be revoked.
D. Conclusion
Accordingly, for all of the above reasons, we grant the
General Counsel’s Motion for Summary Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with headquarters at 10 Rockefeller Plaza, New York,
New York, has been a security contractor with offices
and facilities at 4 Parklane Blvd., Suite 325, Dearborn,
Michigan.
During calendar year 2005, a representative period, the
Respondent, in conducting its business operations de-
scribed above, had gross revenues in excess of $500,000
and provided services valued in excess of $50,000 di-
rectly to Ford Motor Company, which is directly en-
gaged in interstate commerce.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Plant Protection Association
National, the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held May 26,
2006, the Union was certified on June 20, 2006, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time security officers, in-
cluding ingress and egress officers, commercial build-
ing officers, commercial road control officers, and site
supervisors, employed by the Respondent at Ford Land
Commercial Properties’ Dearborn, Michigan sites of
Fairlane Office Center, Regent Court, Fairlane Plaza,
FTDC and Fairlane Club, ITEK, Corporate Crossings,
500 Town Center, Visteon Executive Floor, and VPO;
but excluding office employees, clerical employees,

5 We therefore deny the Respondent’s requests that the complaint be
dismissed, that the Board’s certification of the Union in Case 7–RC–
22970 be revoked, and that the instant case be remanded for consolida-
tion with the CB cases.
GUARDSMARK, LLC 1005
supervisors as defined in the Act, and all non-guard
employees.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
About July 10, 2006, the Union, by letter, requested
that the Respondent bargain with it as the exclusive col-
lective-bargaining representative of the unit.
Since about August 11, 2006, the Respondent has
failed and refused to bargain with the Union. We find
that this refusal constitutes an unlawful refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since August 11, 2006, to bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the appropriate unit, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Guardsmark, LLC, Dearborn, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Plant Protection Association National as the exclusive
collective-bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and,
if an understanding is reached, embody the agreement in
a signed agreement:
All full-time and regular part-time security officers, in-
cluding ingress and egress officers, commercial build-
ing officers, commercial road control officers, and site
supervisors, employed by the Respondent at Ford Land
Commercial Properties’ Dearborn, Michigan sites of
Fairlane Office Center, Regent Court, Fairlane Plaza,
FTDC and Fairlane Club, ITEK, Corporate Crossings,
500 Town Center, Visteon Executive Floor, and VPO;
but excluding office employees, clerical employees,
supervisors as defined in the Act, and all non-guard
employees.
(b) Within 14 days after service by the Region, post at
its facilities in Dearborn, Michigan, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized
representative, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 11,
2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
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 refuse to bargain with Plant Protection
Association National as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time security officers, in-
cluding ingress and egress officers, commercial build-
ing officers, commercial road control officers, and site
supervisors, employed by us at Ford Land Commercial
Properties’ Dearborn, Michigan sites of Fairlane Office
Center, Regent Court, Fairlane Plaza, FTDC and Fair-
lane Club, ITEK, Corporate Crossings, 500 Town Cen-
ter, Visteon Executive Floor, and VPO; but excluding
office employees, clerical employees, supervisors as
defined in the Act, and all non-guard employees.
GUARDSMARK, LLC