Myers Investigative & Security Services

National Labor Relations Board - Board Decisions

Jul 23, 2009

354 N.L.R.B. 367 (N.L.R.B. 2009)

354 NLRB No. 51
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Myers Investigative and Security Services, Inc. and
United Federation of Special Police and Security
Officers, Inc. Cases 22–CA–28417 and 22–CA–
28575
July 23, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 11, 2009, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel filed an exception and a supporting brief.
The National Labor Relations Board1 has considered
the decision and record in light of the exception and brief
and has decided to affirm the judge’s rulings, findings,2
and conclusions, and to adopt the Order as modified and
set forth in full below.3
AMENDED 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

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
2 No exceptions were filed to the judge’s findings that the Respon-
dent violated the Act as alleged.
The General Counsel has excepted to the judge’s failure to impose a
remedy that “includes a bargaining schedule requiring [the] Respondent
to meet with the Union not less than 24 hours per month and not less
than 6 hours per session or any other schedule mutually agreed upon
until a collective bargaining agreement is reached or good faith impasse
is reached.” We deny the General Counsel’s exception, as there is a
lack of support for this remedy in current Board law. Chairman Lieb-
man believes, however, that such a remedy may be worthy of consid-
eration in a future case. See Leavenworth Times, 234 NLRB 649, 649–
651 (1978) (Member Murphy, dissenting in relevant part).
3 We have modified the judge’s recommended Order to reflect the
violations found and to more closely conform to the Board’s standard
remedial language. We have also substituted a new notice to employ-
ees to comport with these modifications. Finally, we have included an
amended remedy.
understanding is reached, to embody the understanding
in a signed agreement. We shall also order the Respon-
dent to provide the Union with the information it re-
quested and to bargain on request with the Union over
the effects of the possible loss of the Respondent’s con-
tract at the Lakehurst, New Jersey facility.
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); 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, Myers Investigative and Security Services,
Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union by failing to respond to the Union’s requests to
meet and continue negotiations, failing and refusing to
meet with the Union at reasonable times, and failing and
refusing to bargain over the effects of the possible loss of
the Respondent’s contract at the Lakehurst, New Jersey
facility.
(b) Failing and refusing to provide the Union with in-
formation that it requested, which information is neces-
sary for, and relevant to, the Union as the collective-
bargaining representative of the unit employees.
(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) 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 understanding
in a signed agreement:
All full-time and regular part-time security guards em-
ployed by Respondent at the Lakehurst Naval Base in
Lakehurst, New Jersey and the Weapons Naval Station
Earle, Colt’s Neck, New Jersey, excluding all other
employees and supervisors as defined by the National
Labor Relations Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(b) On request, bargain in good faith with the Union
over the effects of a possible loss of the Respondent’s
contract at the Lakehurst, New Jersey facility.
(c) Furnish the Union with the information that it re-
quested on about July 22, 2008, namely, the names,
wages, and benefits of the unit employees.
(d) Within 14 days after service by the Region, post at
its principal office in Dunn, North Carolina, as well as all
its facilities in the State of New Jersey where its employ-
ees are employed, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since May 7, 2008.
(e) 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.
Dated, Washington, D.C. July 23, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 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.”
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 fail and refuse to bargain in good faith
with the Union by failing to respond to the Union’s re-
quests to meet and continue negotiations, WE WILL NOT
fail and refuse to meet with the Union at reasonable
times, and WE WILL NOT fail and refuse to bargain over
the effects of the possible loss of our contract at the
Lakehurst, New Jersey facility.
WE WILL NOT fail and refuse to provide the Union with
information that it requested, which information is neces-
sary for, and relevant to, the Union as the collective-
bargaining representative of the unit employees.
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 as the ex-
clusive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, WE WILL embody the
understanding in a signed agreement:
All full-time and regular part-time security guards em-
ployed by us at our Lakehurst Naval Base in Lakehurst,
New Jersey and the Weapons Naval Station Earle,
Colt’s Neck, New Jersey, excluding all other employ-
ees and supervisors as defined by the National Labor
Relations Act.
WE WILL, on request, bargain in good faith with the
Union over the effects of a possible loss of our contract
at the Lakehurst, New Jersey facility.
WE WILL furnish the Union with the information that it
requested on about July 22, 2008, namely, the names,
wages, and benefits of the unit employees.
MYERS INVESTIGATIVE AND SECURITY
SERVICES, INC.
MYERS INVESTIGATIVE & SECURITY SERVICES 3
Robert Gonzales, Esq., for the General Counsel.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on January 29, 2009, in Newark, New Jersey.
The consolidated amended complaint herein, which issued on
January 7, 2009, and was based upon unfair labor practice
charges filed on June 23, August 25, and September 26, 2008,
by United Federation of Special Police & Security Officers,
Inc. (Union), alleges that Myers Investigative and Security
Services, Inc. (Respondent), violated Section 8(a)(1) and (5) of
the Act by refusing to meet with the Union to continue bargain-
ing for an initial contract, has engaged in delay and failed to
meet with the Union at reasonable times, has failed to respond
to the Union’s request to meet and bargain over the effects of
the possible loss of the Respondent’s contract at the Lakehurst,
New Jersey facility, and has failed to supply the Union with
certain requested information, which is relevant to the Union as
the collective-bargaining representative of certain of its em-
ployees. The consolidated complaint further states that pursu-
ant to the Board’s Rules and Regulations, the Respondent’s
answer must be received by the Regional Office by January 21,
2009. The Respondent failed to file an answer and did not
appear at the hearing herein.1 Counsel for the General Counsel,
at the hearing, moved for default judgment, which motion I
granted. Based upon the pleadings herein, I make the following
findings of fact and conclusions of law:
1(a). The Union filed the charge in Case 22–CA–28417 on
June 23, 2008, and a copy was served by regular mail on Re-
spondent on June 24, 2008.
(b) The Union filed its first amended charge in Case 22–
CA–28417 on August 25, 2008, and a copy was served by regu-
lar mail on the Respondent on August 27, 2008.
(c) The Union filed the charge in 22–CA–28575 on Septem-
ber 26, 2008, and a copy was served by regular mail on Re-
spondent on September 26, 2008.
2. At all material times Respondent, a North Carolina corpo-
ration, with its office and place of business in Dunn, North
Carolina (Respondent’s principal office), has been engaged in
providing security services for customers located in various
states of the United States, including facilities located in Colt’s
Neck and Lakehurst, New Jersey, the only facilities involved
herein.
3. During the preceding 12 months Respondent, in conduct-
ing its business operations described above in paragraph 2,
performed services valued in excess of $50,000 in states other
than the State of North Carolina.
4. At all material times Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

1 The initial consolidated complaint issued on November 24, 2008.
After receiving no answer from the Respondent, the Region, by letter to
the Respondent dated December 17, 2008, stated that unless a timely
answer was received by December 24, 2008, the Region would move
for default judgment. No answer was received in response to the com-
plaint or the subsequent letter.
5. At all material times the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
6. The following employees of Respondent, herein called
the unit, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time security guards employed
by Respondent at the Lakehurst Naval Base in Lakehurst,
New Jersey, and the Weapons Naval Station Earle, Colt’s
Neck, New Jersey, excluding all other employees and super-
visors as defined in the National Labor Relations Act.
7. On March 18, 2008, the Union was certified as the exclu-
sive collective-bargaining representative of the unit.
8. At all times since March 18, 2008, based on Section 9(a)
of the Act, the Union has been the exclusive bargaining repre-
sentative of the unit.
9. About March 25, 2008, the Union by electronic mail, re-
quested that Respondent bargain collectively with the Union as
the exclusive collective-bargaining representative of the unit.
10(a). About May 6, 2008, Respondent and the Union began
negotiations for an initial collective-bargaining agreement.
(b) Since May 7, 2008, Respondent has failed to respond to
Union requests to meet and continue negotiations for an initial
collective-bargaining agreement.
(c) Since May 7, 2008, Respondent has engaged in chronic
delay in meeting with the Union and has failed to meet at rea-
sonable times to continue negotiations for an initial collective-
bargaining agreement.
(d) Since September 17, 2008, Respondent failed to respond
to the Union’s requests to meet and bargain over the effects of
the possible loss of Respondent’s contract at the Lakehurst,
New Jersey facility.
11. Since about July 22, 2008, the Union, by electronic mail,
has requested that Respondent furnish the Union with the fol-
lowing information: names, wages, and benefits of employees
in the unit.
12. The information requested by the Union, as described
above in paragraph 11, is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collective-
bargaining representative of the unit.
13. Since about July 22, 2008, Respondent has failed and re-
fused to furnish the Union with the information requested by it
as described above in paragraphs 11 and 12.
14. By the conduct described in paragraphs 10 and 13, Re-
spondent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-bargaining rep-
resentative of its employees within the meaning of Section 8(d)
of the Act, in violation of Section 8(a)(1) and (5) of the Act.
15. The unfair labor practices of Respondent described
above affect commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that it be ordered to cease and
desist from engaging in these activities, and that it be ordered to
take certain affirmative action designed to effectuate the poli-
cies of the Act. In this regard, as requested in the complaint
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
herein, I recommend that the Respondent be ordered to bargain
in good faith with the Union for a period of 1 year commencing
on the date of the first collective-bargaining session between
the parties after the issuance of this Decision. Mar-Jac Poultry
Co., 136 NLRB 785 (1962). I also recommend that the Re-
spondent be ordered to furnish the Union with the names,
wages, and benefits of the employees in the unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Myers Investigative and Security Services,
Inc., its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the Un-
ion by failing to respond to the Union’s requests to meet and
continue negotiations, failing and refusing to meet at reasonable
times, and failing and refusing to bargain over the effects of the
possible loss of Respondent’s contract at the Lakehurst, New
Jersey facility.
(b) Failing and refusing to provide the Union with informa-
tion that it requested, which information is necessary for, and
relevant to, the Union as the collective-bargaining representa-
tive of the unit employees.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Notify the Union within 10 days of receipt of this Deci-
sion that it will bargain in good faith with the Union about the
terms and conditions of employment of the unit employees for
a period of 1 year, and that it will respond to the Union’s re-
quests to bargain and will meet with the Union at reasonable
times to continue the negotiations.
(b) Furnish the Union with the information that it requested
on about July 22, 2008, namely the names, wages, and benefits
of the unit employees.
(c) Within 14 days after service by the Region, post at its
principal office in Dunn, North Carolina, as well as all its facili-
ties in the State of New Jersey where its employees are em-
ployed, copies of the attached notice marked “Appendix.”3
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 22, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 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.”
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, 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 facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since May 7, 2008.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. February 11, 2009
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 violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain in good faith with United
Federation of Special Police & Security Officers, Inc. (the Un-
ion), by failing to respond to the Union’s request to meet and
bargain, by refusing to meet with the Union at reasonable times
to continue negotiations, by refusing to furnish the Union with
information that it requested, which was relevant to the Union
and the collective-bargaining representative of certain of our
employees, and by failing to respond to the Union’s request to
bargain over the effects of the possible loss of our contract at
the Lakehurst, New Jersey facility.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights guaranteed
by Section 7 of the Act.
WE WILL within 10 days of the receipt of this Decision notify
the Union that we will bargain in good faith with respect to the
terms and conditions of employment of our full-time and regu-
lar part-time security guards employed at the Lakehurst Naval
Base and the Weapons Naval Station Earle in Lakehurst and
Colts Neck, New Jersey, and WE WILL meet at reasonable times,
without delay, WE WILL bargain in good faith with the Union
over the effects of a possible loss of our contract at the Lake-
hurst facility, and WE WILL furnish the Union with the names,
wages, and benefits of our unit employees.
MYERS INVESTIGATIVE AND SECURITY SERVICES, INC.