Servicios Correccionales De Puerto Rico

National Labor Relations Board - Board Decisions

Oct 28, 2002

338 N.L.R.B. 452 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
Corrections Corporation of America d/b/a Servicios
Correccionales De Puerto Rico and Asociacion
de Miembros de la Policia De Puerto Rico, Peti-
tioner. Case 24–RC–8187
October 28, 2002
NOTICE TO SHOW CAUSE
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On June 24, 2002, the Employer filed an Informative
Motion and Motion Requesting Dismissal of Petition
asserting that the Corrections Administration for the
Commonwealth of Puerto Rico had announced that, ef-
fective August 6, 2002, it was cancelling the manage-
ment services agreement with the Employer covering the
Guayama, Puerto Rico prison facility where the unit em-
ployees performed guard services. The Petitioner, in
response, filed a Motion Opposing Dismissal of Petition.
On August 16, 2002, the vice administrator of the Cor-
rections Administration of Puerto Rico, Ileana Mattei
Latimer, sent a letter to the Board’s Regional Office stat-
ing in pertinent part:

I am confirming that the contract between the
Public Building Authority (PBA), Corrections Ad-
ministration (CA) and the Corrections Corporation
of America (CCA) to administer a correctional insti-
tution in Guayama, on behalf of the CAA, was can-
celled due to budgetary constraints, effective August
5, 2002.
Since the 6th of August, the CA administers said
institution.

Accordingly, notice is hereby given to all parties to
show cause, in writing, filed with the Board in Washing-
ton, D.C. on or before November 12, 2002 (with affidavit
of service on the parties to this proceeding), why the
Employer’s motion to dismiss the petition should not be
granted on the ground that the Employer no longer em-
ploys the employees at issue.1

1 Contrary to the dissent, we conclude that it would be unnecessarily
wasteful of the Board’s resources to determine the merits of the Em-
ployer’s election objections at this time. The Employer has averred that
the Commonwealth of Puerto Rico has cancelled its contract covering
the unit employees and that, therefore, it no longer employs them. The
issuance of this Notice to Show Cause gives the Petitioner the opportu-
nity to refute the Employer’s assertion regarding the status of the unit
employees. Our colleague’s reliance on the unit employees’ potential
right to effects bargaining over their terminations is misplaced in this
context where that right would exist only in the event that the Board
considers and ultimately overrules the Employer’s objections. Given
that the Employer has allegedly ceased the relevant operations, that
bargaining right is simply too speculative to justify the expenditure of
the Board’s resources until additional facts are known.

MEMBER LIEBMAN, dissenting.
Before a Notice to Show Cause should issue, the
Board first must decide the merits of the Employer’s
objection to the August 3, 2001 representation election,
which the Petitioner won by a vote of 148 to 4.
This case involves a unit of guards employed at a
prison in the Commonwealth of Puerto Rico. Pursuant to
a contract with the Commonwealth, the Employer, at
least until August 2002, ran the prison and employed the
guards. As indicated, in an election held August 3, 2001,
the guards voted overwhelmingly in favor of representa-
tion by the Petitioner.
The Employer timely filed an election objection alleg-
ing that the Petitioner was indirectly affiliated with a
nonguard union and therefore, under Section 9(b)(3),
could not be certified as the unit employees’ representa-
tive. The hearing officer recommended overruling the
Employer’s objection. The Employer has excepted to
this recommendation and this exception is currently be-
fore the Board.
In the meantime, on June 24, 2002, the Employer filed
with the Board a motion to dismiss the election petition
as moot, asserting that, as of August 6, 2002, it was to
lose its contract with the Commonwealth. The Employer
further asserted that, as of that date, the unit employees
would become public employees beyond the Act’s reach
and for this reason the Board should dismiss the petition.
The Employer’s motion, and the Notice to Show Cause,
is premature.
Before ruling on the Employer’s motion, the Board
first must decide the merits of the Employer’s election
objection. If the objection lacks merit, then the Board
may not dismiss the petition as moot. This is so because,
if the Petitioner was properly certified, then its status as
the guards’ exclusive representative, and the Employer’s
corresponding bargaining obligation, dates back to Au-
gust 3, 2001. See generally Mike O’Connor Chevrolet-
Buick-GMC Co., 209 NLRB 701 (1974), enf. denied on
other grounds 512 F.2d 684 (8th Cir. 1975) (employer
acts at its peril in taking unilateral actions while its elec-
tion objections are pending; if the Board ultimately certi-
fies the union, then the employer’s unilateral actions vio-
late Sec. 8(a)(5) and (1)). At a minimum, then, the Em-
ployer would have a duty to bargain over the effects of
the unit employees’ permanent layoff in August 2002.
See Hillcrest Furniture Mfg. Co., 253 NLRB 72 (1980)
(finding, based on Mike O’Connor Chevrolet, that em-
ployer violated Sec. 8(a)(5) and (1) by unilaterally laying
off employees between the union’s election victory and
the Board’s decision overruling the employer’s objec-
tions and certifying the union); Clements Wire & Mfg.
Co., 257 NLRB 1058 (1981) (holding that employer
338 NLRB No. 53
SERVICIOS CORRECCIONALES DE PUERTO RICO 453
unlawfully failed to consult with union over layoffs oc-
curring between time of election and certification). If, on
the other hand, the Employer’s objection is meritorious,
then the petition arguably may be subject to dismissal.
But this just confirms that the Board must assess the mer-
its of the Employer’s objection before ruling on its mo-
tion to dismiss.