Nevada Security Innovations, LTD

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1108 (N.L.R.B. 2002)

1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nevada Security Innovations, LTD. and Safety Offi­
cers Union, Petitioner and Federation of Police,
Security & Correction Officers-AFSPA. Case
31–RC–8025
August 1, 2002
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN HURTGEN AND MEMBERS COWEN AND
BARTLETT
The National Labor Relations Board, by a three-
member panel, has considered an objection to a mail bal­
lot election held August 24, 2001, through September 13,
2001, and the hearing officer’s report recommending
disposition of the objection. The election was conducted
pursuant to a Stipulated Election Agreement. The tally of
ballots shows 28 for the Petitioner, 139 for the Interve­
nor, and 25 against the participating labor organizations,
with no challenged ballots and 1 void ballot.
The Board has reviewed the record in light of the ex­
ceptions and briefs, has adopted the hearing officer’s
findings’1 and recommendations, as modified and dis­
cussed below, and finds that a certification of representa­
tive should be issued.
The hearing officer recommended overruling the Em­
ployer’s Objection 1, which alleges, in substance, that a
letter sent to employees by an affiliate of the Intervenor
misrepresented that the affiliate would be appearing on
the ballot. The hearing officer relied on Midland Na­
tional Life Insurance, 263 NLRB 127 (1982), in which
the Board held that it generally will not set elections
aside on the basis of campaign misrepresentations. Al­
though we agree with the hearing officer that the Em­
ployer’s objection should be overruled, we do not rely on
Midland.
Instead, we shall apply the standard the Board set forth
in Pacific Southwest Container, 283 NLRB 79 (1987). In
that case, after the filing of the petition, but before the
election, the petitioning union merged with another un­
ion, creating a new, much larger labor organization with
different officers, constitution, bylaws, and geographic
base. The Board set aside the election because it was
unclear whether all unit employees knew of the change in
identity and structure of the petitioner, and because the
correct, surviving labor organization was not listed on
the ballot. Id. at 80.
1 The Employer has excepted to some of the hearing officer’s credi­
bility findings. The Board’s established policy is not to overrule a hear­
ing officer’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Stretch-Tex
Co., 118 NLRB 1359, 1361 (1957).
Although the employer in Pacific Southwest framed its
objection in misrepresentation terms, the Board was care­
ful to point out that it was “not setting aside the election
for that reason.” Id at 80 fn. 7. Rather, the Board found
that “the election did not comport with Sec[tion] 9(a)
because we cannot ascertain that a majority of the em­
ployees intended to designate [the surviving labor or­
ganization] as their collective-bargaining representative.”
Id.
By contrast, we find here, for the reasons set forth be-
low, that the election in this case did comport with Sec­
tion 9(a) and that a majority of the employees intended to
designate the Intervenor as their collective-bargaining
representative. The key facts can be summarized as fol­
lows.
The petition was filed by the Safety Officers Union.
The Federation of Police, Security & Correction Offi­
cers-AFSPA (FOPSCO or the Intervenor) intervened in
this proceeding.
The Employer’s objection focuses on an August 13,
2001 letter to employees sent by an affiliated local union
of FOPSCO (Local 2001). Concededly, Local 2001’s
letter could reasonably have confused employees into
believing that Local 2001 was participating in the elec­
tion because the letter directed employees to examine
Local 2001’s financial reports; the letter referred em­
ployees to the Local 2001’s website; and the letter con­
cluded by stating that “[w]e stand ready to represent you
and invite you to be a member of the greatest Local Un­
ion on the West Coast.”
One week later, FOPSCO sent its own letter to em­
ployees. This letter did not refer to Local 2001, and it
encouraged employees to vote for FOPSCO.
Most significantly, in an August 23 letter sent to all
employees, the Employer responded to Local 2001’s
letter and clarified for employees the identity of the labor
organization that was seeking to represent them. In no
uncertain terms, the Employer’s letter stated that Local
2001 “is not on the NLRB Elect ion Bal lot Agree­
ment on which we s t ipulated!” ; rather, FOPSCO “is
on the ba l lo t .” (Emphasis in the original.) The letter
again distinguished between the two labor organizations
when it stated that while Local 2001 “may be financially
solvent,” FOPSCO “ is not.” (Emphasis in the original.)
Furthermore, the Board’s notice of election clearly
listed FOPSCO on the sample ballot. As the hearing offi­
cer pointed out, this official Board document would have
clarified for voters that it was FOPSCO, not Local
2001, that was seeking to represent them.
Finally, it is undisputed that FOPSCO was correctly
identified on the ballots sent to, and marked by, the vot­
ers. Local 2001 did not appear on the ballots.
337 NLRB No. 173
NEVADA SECURITY INNOVATIONS 1109
Under these circumstances, we conclude that by the
time the ballots were cast, employees would not reasona­
bly have been confused over the identity of the labor
organization seeking to represent them. Any confusion
engendered by Local 2001’s letter would have been dis­
sipated by the subsequent communications from
FOPSCO and the Employer, as well as by the Board’s
Notice of Election and the official election ballots. Thus,
we conclude that the employees knew for which union
they were voting, and that their right to select their bar-
gaining representative was not compromised. Accord­
ingly, we adopt the hearing officer’s recommendation
that the Employer’s objection be overruled.2
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Federation of Police, Security & Correction
Officers-AFSPA, and that it is the exclusive collective-
bargaining representative of the employees in the follow­
ing appropriate unit:
Included: All full time and regular part time security of­
ficers employed at various federal agencies locations
and facilities as set forth in Attachment B to the Stipu­
lated Election Agreement.
2 The Employer also contends that the Intervenor should not be certi­
fied because it intends to transfer its bargaining rights to an affiliated
union. The hearing officer rejected this contention on the ground that it
raises a “post -election matter.” We agree. If any postcertification
changes in bargaining representative were to occur, they may be ad-
dressed in appropriate subsequent proceedings. See, e.g., Goad Co .,
333 NLRB 677 (2001) (employer did not violate Sec. 8(a)(5) when it
refused to bargain after statutory bargaining representative transferred
its representational responsibilities to another labor organization). Here,
it is not clear that FOPSCO intended, upon certification, to transfer its
bargaining rights. Contrary to our dissenting colleague, we would not
give the Employer another chance to make that showing. If, after certi­
fication, FOPSCO seeks to transfer bargaining rights, the Board can
deal with that in an appropriate case.
Excluded: Office clerical employees, professional em­
ployees, all other employees, supervisors (including
lead security officers) as defined in the Act.
MEMBER COWEN, dissenting.
I would remand this case for further hearing. I am of
the view that a union’s stated intent at the time of the
election to transfer its bargaining rights postcertification
to another union compromises the employees’ rights to
select their representative. Even assuming that, despite
the confusion created by Local 2001’s letter, the employ­
ees here would not reasonably have been confused over
the identity of the labor organization seeking to represent
them, as found by the majority, I would not overrule the
Employer’s objection on the basis of the record before
us. I find an issue raised as to whether the Intervenor
intended to represent the employees once it is certified.
I disagree with my colleagues’ acceptance of the hear­
ing officer’s proposition that prospective changes in the
identity of the bargaining representative are appropriately
addressed in subsequent proceedings. Evidence that a
union does not unequivocally intend at the time of the
election to represent employees itself, but rather would
transfer bargaining rights to another union, in my view is
sufficient to preclude certification. Thus, if the record
demonstrates that the Intervenor had a clear plan to trans­
fer bargaining rights to either Local 2001 or another af­
filiate, I would sustain the Employer’s objection.
The hearing officer made no findings as to the Interve­
nor’s intent to represent the unit based on the view that
this issue could be addressed in a later proceeding.
would remand the case to the hearing officer to reopen
the record in order to fully develop the record on this
issue and make findings resolving whether at the time of
the election the Intervenor intended to transfer bargaining
rights to some other labor organization or affiliate.
I